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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...