October 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-03-0270.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Fisher and Nugent.
Defendant D.C. appeals from the February 11, 2009 order denying his petition for post-conviction relief (PCR). He contends, among other things, that his trial counsel was ineffective for abandoning a motion and waiving a pre-trial hearing to challenge two statements, one inculpatory and one exculpatory, given by his two stepchildren to the law enforcement authorities who questioned them in response to their mother's allegations that they had been molested by defendant. The trial court determined that defendant and his attorney made a considered decision not to pursue the motion, and that trial counsel was not ineffective. We affirm.
On September 3, 1998, a jury convicted defendant of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts one and two); and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts three and four). On February 5, 1999, the trial court sentenced defendant to consecutive ten-year prison terms with five years of parole ineligibility on counts one and two, as well as two ten-year prison terms with five years of parole ineligibility on each of counts three and four, the sentence on count three to be served concurrently to the sentence on count one, and the sentence on count four to be served concurrently to the sentence on count two. We affirmed the judgment of conviction on direct appeal, State v. D.C., No. A-6097-98 (App. Div. October 11, 2000), and the Supreme Court denied certification, State v. D.C., 167 N.J. 629 (2001).
Defendant subsequently filed a pro se PCR petition that the trial court denied as procedurally barred. Defendant appealed. We remanded the matter and directed that the court assign counsel to defendant and reconsider the petition for post-conviction relief. On remand, the court denied defendant's PCR petition without a hearing. Defendant appealed, and we reversed and remanded the matter for an evidentiary hearing. State v. D.C., Docket No. A-1482-06 (App. Div. April 25, 2008). On remand, after an evidentiary hearing, the trial court again denied defendant's PCR petition. Defendant appeals from the confirming order.
The facts underlying defendant's arrest and conviction are set forth in our decision affirming defendant's conviction on direct appeal. D.C., supra, No. A-6097-98, slip op. at 2-5. We add the following to provide a context for the issues that defendant presents on this appeal.
Defendant was a thirty-one-year old naturalist or nudist when he met T.C.H. in 1990 after placing a personal ad in a newspaper. At that time, T.C.H. had two children, both boys, ages four and seven. Defendant eventually prevailed upon T.C.H. and her children to adopt his naturalist lifestyle. Defendant and T.C.H. married in 1991.
On June 21, 1996, T.C.H. reported to the Ocean County Prosecutor's Office that defendant had been sexually abusing her children. She said the children told her that defendant had touched their private areas and they did not want to be left alone with him. She also said that approximately three weeks earlier, she had witnessed inappropriate conduct between defendant and her sons.
Investigator Kimberly Reed, who worked in the Ocean County Prosecutor's sex crimes-child abuse unit, was assigned to investigate the allegations against defendant. She met with T.C.H. and her sons at the prosecutor's office where she videotaped statements made by T.C.H. and her children. Investigator Reed did not speak with either child before conducting the videotaped interviews. In fact, she avoided speaking with them because she "wouldn't want to influence them in anyway before-hand." She interviewed the boys separately. The only other person present during the interviews was an employee from the New Jersey Division of Youth and Family Services. Although the older child related incidents of inappropriate sexual contact perpetrated by defendant, the younger child denied that he had been touched inappropriately or otherwise abused.
Following defendant's indictment, he retained Edward J. Dougherty, Ed.D., who reviewed medical records, the children's statements, and statements made by T.C.H. and one of her friends. In a report Dougherty prepared in December 1997, he opined that the older child's statement to Investigator Reed "has questionable validity." Observing that during the older child's interview "[t]here was a great deal of shaping on the part of the examiners to elicit responses that they would consider appropriate," Dougherty concluded, "[t]here is a good argument in this case that the statement was coerced and inappropriately obtained."
Dougherty also reviewed testimony given by the younger child to the grand jury. Dougherty reported: "I cannot make a statement as to the accuracy or validity of the Grand Jury testimony."
After receiving Dougherty's report, defense counsel filed a motion for a Michaels*fn1 hearing "to determine the reliability and admissibility of [the children's] statements." Thereafter, counsel retired and defendant retained new counsel.
During a pre-trial status conference, the trial court scheduled a trial date and indicated it would conduct the Michaels hearing before jury selection. Defendant did not pursue the Michaels hearing, however. His attorney confirmed at trial that: "[M]y client and I went over the elements of a Michaels hearing and obviously didn't feel as though that was appropriate. And I did waive the Michaels hearing intentionally[.]"
At trial, the State presented the testimony of T.C.H. and her two children, the testimony of Reed, and the videotaped statements of the children. Defendant testified on his own behalf and denied the allegations of sexual abuse. He testified that he was "very, very close" with his stepchildren. Yet, he also testified that the children liked to tell stories and create turmoil. Defendant also testified that T.C.H. had stated in a letter to him that she missed their relationship, was sorry that the boys had started trouble, and that she felt totally responsible. The jury rejected defendant's testimony and convicted him for sexually abusing the children.
During the hearing on defendant's PCR petition, defendant presented the testimony of his trial attorney and Dr. Dougherty, and testified on his own behalf. The court limited the PCR hearing to defendant's claim that trial counsel's waiver of the Michaels hearing constituted ineffective assistance.
Trial counsel testified that he was the second attorney to represent defendant. He received Dr. Dougherty's report along with a report prepared by the State's expert.*fn2 Counsel conferred with defendant about the Michaels hearing and learned that defendant "was extremely concerned, to say [the] very least, about the future well-being of these children[,]" and how they would be affected by ongoing adversarial proceedings. He wanted to avoid such situations if possible. Counsel and defendant also considered that the younger child had provided an exculpatory or "extremely positive" statement to the prosecutor's investigator. Counsel emphasized, however, that the main reason for not pursuing the Michaels hearing was defendant's concern for the children. Counsel testified:
[Defendant] didn't want to put these kids through more of a beating, if you will, than they had already been through. They had been through, at least in his eyes, a tremendous strain. Obviously, he was very close to them for a significant amount of time. And that was his concern. That was his primary concern.
Counsel also explained that there was a legal strategy involved, though the legal strategy was secondary to defendant's concern for the children. The legal strategy involved cross-examining the prosecutor's investigator to emphasize the younger child's statement that no abuse had occurred, while indirectly attacking the older child's statement. Counsel testified that he and defendant agreed upon the strategy after counsel "spoke with [defendant] thoroughly on that issue."
Dr. Dougherty, an expert in the field of forensic psychology, had been retained by defendant's first attorney to evaluate the children's videotaped statements. He reviewed, among other records, medical records documenting the serious behavioral problems and neurological impairments suffered by the older child. The doctor reiterated his concerns about the older child's statement, particularly in view of the "[n]onverbal feedback that was used as a reinforcer." The doctor explained that with children suffering from the conditions afflicting the older child, "the first thing you do to help control behavior is nonverbal feedback." According to Dr. Dougherty, such positive reinforcers "were very evident in the way Detective Reed conducted her interview." The doctor stated, "[w]e call it shaping of behavior."
The doctor also noted that the older child's "responses to questions were inconsistent with the question being asked." These problems were exacerbated by the temperature in the interview room, which was very hot. The doctor explained that repeatedly asking questions ensures that children, such as T.C.H.'s older son, will attempt to give the most positive response to please the person asking the question. "[T]he more you ask the question, the more it becomes part of what [the children being interviewed] believe to be what's happened." Although the doctor had been prepared to testify at a pre-trial Michaels hearing, he never heard from defendant's trial counsel.
On cross-examination, Dr. Dougherty acknowledged that the investigators never "pressed" the older child to answer a question according to what they wanted. Rather, they would say, "okay, very good," to many of the child's responses. But when asked for specific examples, the doctor said that after the child responded to a question about what town he lived in, the investigators said, "Okay. Very good." When they asked if the town was in New Jersey and he said, "Hum," investigators responded, "Okay. Very good." The doctor could not point to one instance in the older child's statements where the investigators corrected him or had him change an answer.
Defendant testified and contradicted the testimony given by trial counsel. According to defendant, his first attorney reviewed Dr. Dougherty's report with him and explained its importance. Specifically, the attorney explained that the children's interviews were somehow tainted, resulting in objectionable questioning by the investigator. The attorney intended to have Dr. Dougherty testify at a hearing to challenge the children's statements.
When defendant's first attorney retired, defendant retained the attorney who ultimately defended him at trial. Defendant gave a copy of Dr. Dougherty's report to his new attorney. Although defendant had borrowed the money to have Dr. Dougherty testify at a Michaels hearing, no such hearing was held. Instead, just before the trial commenced, counsel called him and "said that it would not be feasible to have the Michaels hearing because the State's testimony can't stop my testimony or Dr. Dougherty's testimony. And it wouldn't be feasible to do it because he wouldn't get anywhere."
According to defendant, trial counsel did not discuss the advantages or disadvantages of a Michaels hearing. The entire telephone conversation about the Michaels hearing took approximately five minutes. Defendant said he never expressed concerns about the children testifying at a Michaels hearing, because he "wasn't even aware they had to testify." Defendant was disappointed because he "felt that by having the Michaels hearing [he] wouldn't have to go to trial, . . . [b]ecause once the testimony would have been thrown out . . . there would have been no more evidence to have a trial with."
Defendant did not question his attorney because he felt the attorney knew what he was doing. Defendant acknowledged being present at trial when his attorney informed the court that the attorney had discussed the Michaels hearing with defendant and that "we voluntarily waived this hearing." Defendant said when that happened he was both upset and not upset; he was upset because he believed there was a chance to have his case thrown out, but he was not upset because he thought the attorney knew what he was doing.
The court rejected defendant's testimony, finding that it was not credible. The court determined that trial counsel's testimony was credible. The court also explained that it had reviewed the trial transcripts and concluded defendant would have been convicted even in the absence of the children's videotaped statements.
We begin by addressing defendant's argument that trial counsel was ineffective for waiving a Michaels hearing. Our scope of review of the PCR court's factual findings is limited; we must accept them if they are supported by sufficient credible evidence in the record. State v. Arthur, 184 N.J. 307, 320 (2005). Under that standard, an appellate court "do[es] not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid. (citing State v. Johnson, 42 N.J. 146, 162 (1964)).
Based upon our scope of review, we accept the trial court's
credibility determinations. In consequence, we accept as supported by sufficient credible evidence, trial counsel's explanation as to why he and defendant waived the Michaels hearing. Specifically, counsel testified that he and defendant waived the hearing primarily due to defendant's concern for his stepchildren, and secondarily for strategic objectives they believed could be accomplished through cross-examination of the investigator who took the statements. Considering those facts, the trial court did not err in determining that defendant had failed to demonstrate that his trial counsel rendered ineffective assistance.
To prove ineffective assistance of counsel, defendant "must show that counsel's performance was deficient[,]" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and "that the deficient performance prejudiced the defense[,]" that is, "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Our Supreme Court has adopted the Strickland standard for such claims arising under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). When applying that standard, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. A defendant's complaint about an attorney's trial strategy "will not serve to ground a constitutional claim of inadequacy of representation by counsel." Fritz, supra, 105 N.J. at 54. Moreover, "[w]e recognize that the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." State v. Deutsch, 229 N.J. Super. 374, 377 (App. Div. 1988).
In the case before us, the Michaels hearing presented a dilemma for trial counsel. Defendant, concerned about the impact of the proceedings on his stepchildren, wanted to avoid the hearing. Although defendant could use the younger child's exculpatory statement to his advantage at trial, the older child's statement inculpated defendant. After reviewing "the elements of a Michaels hearing" with defendant, counsel and defendant resolved the dilemma by waiving the hearing. They decided instead to cross-examine the investigator at trial in an effort to convince the jury that the younger child's statement was accurate and the older child's statement was inaccurate. The trial court determined that counsel's tactical decision, made in the context of defendant's position about the Michaels hearing, did not constitute ineffective assistance. We find no reason to disturb that determination.
Defendant's arguments amount to an attack on the credibility determinations made by the court. For example, defendant argues that "[t]he PCR court failed to credit the defendant's testimony which completely undercut the reasons identified by trial counsel why he waived the hearing -- the defendant's purported concern with the effect that a Michaels hearing would have on the boys." Defendant's arguments overlook the well-established principle that "[a]n appellate court must accept a trial court's factual finding if it is supported by sufficient credible evidence in the record." Arthur, supra, 184 N.J. at 320.
Defendant's argument that trial counsel's conduct and statements at trial were inconsistent with his stated reasons for waiving the Michaels hearing is, in essence, a further attack on trial counsel's credibility. The trial court resolved the credibility issues against defendant, and the court's acceptance of trial counsel's explanation for waiving the Michaels hearing was supported by sufficient credible evidence in the record.
We turn next to defendant's argument that the trial court misapplied its discretion by limiting the scope of the PCR hearing to defendant's waiver of a Michaels hearing. The court did not err in so ruling.
When the trial court initially denied defendant's PCR petition without a hearing, the court addressed each of defendant's arguments and determined that an evidentiary hearing was unnecessary because defendant had not established a prima facie case of ineffective assistance of counsel. On appeal, defendant raised the following points:
POINT I THE COURT ERRED IN NOT GRANTING
DEFENDANT AN EVIDENTIARY HEARING ON HIS PCR PETITION.
POINT II THE DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
A. LEGAL STANDARD FOR THE EFFECTIVE ASSISTANCE OF COUNSEL.
1. WAIVER OF THE MICHAELS
2. FAILURE TO REQUEST A FRESH COMPLAINT HEARING AND A LIMITING INSTRUCTION ON THE USE OF SUCH EVIDENCE.
3. FAILURE TO OBJECT TO CERTAIN EVIDENCE.
4. FAILURE TO OBJECT TO THE STATE'S IMPROPER CLOSING ARGUMENTS.
5. FAILURE OF APPELLATE COUNSEL TO RAISE CERTAIN ISSUES ON APPEAL.
B. PROOF OF PREJUDICE TO THE DEFENDANT.
POINT III INSTRUCTIONS TO THE JURY REGARDING AN UNANIMOUS VERDICT WAS ERRONEOUS.
POINT IV THE CUMULATIVE EFFECT OF THE ERRORS OUTLINED ABOVE
MANDATES REVERSAL OF THE DEFENDANT'S CONVICTION AND HIS SENTENCE. [D.C., supra, Docket No. A-1482-06, slip op. at 3-4.]
In our decision, after noting that "[n]ot every PCR application entitles a defendant to a plenary hearing, and that a trial judge has the discretion to evaluate an issue as lacking factual or legal merit," Id. at 9, we deemed that a remand was necessary only as to defendant's claim that trial counsel was ineffective for waiving the Michaels hearing. Ibid. The trial court did not misinterpret the scope of the remand. Defendant's remaining arguments did not, and do not, warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
On direct appeal, defendant had raised two of the arguments that he raised again on appeal from the first denial of his PCR petition. Defendant had challenged on direct appeal the "fresh complaint" evidence and had also argued that the prosecutor's improper closing remarks deprived him of a fair trial. We determined on direct appeal that defendant's arguments were without merit. D.C., supra, Docket No. A-6097-98, slip op. at 5-6. We concluded that the "fresh complaint" evidence was properly admitted into evidence, and the court's failure to give a limiting instruction was not clearly capable of producing an unjust result. Id. at 8. We further concluded that to the extent any of the prosecutor's closing remarks were improper, they were not so egregious, individually or cumulatively, to justify a reversal of defendant's convictions. Id. at 6.
Considering those determinations on direct appeal, defendant did not establish in his PCR petition a prima facie showing "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698. Having failed to establish a reasonable likelihood of succeeding under the second Strickland prong, defendant was not entitled to a PCR hearing as to those issues. See State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant also failed to present in his PCR petition a prima facie claim with respect to his argument that trial counsel was ineffective for failing to object to certain evidence. Specifically, defendant claimed that the State bolstered T.C.H.'s credibility with prior consistent statements, including two letters and a birthday card that T.C.H. sent to defendant. The letters and card hardly bolstered T.C.H.'s credibility. T.C.H. suggested in those writings that the boys had made up the story about defendant and that the boys may have confused defendant with another person who had molested them. T.C.H. explained that defendant had actually written one of the letters and had her type it. She admitted signing the other letter and the card. Defendant then used the letters and card to elicit on cross-examination her admission that she would have returned to defendant with her sons; a proposition arguably inconsistent with the notion that defendant was a child molester. In short, the State did not introduce the typewritten statement for the purpose of bolstering T.C.H.'s credibility; and considering defense counsel's effective use of the letters and card, defendant did not establish a prima facie ineffective-assistance claim requiring an evidentiary hearing.
In view of the limited scope of our remand in D.C., supra, Docket No. A-1482-06, slip op. at 9, the trial court did not misapply its discretion by limiting the PCR hearing accordingly.