January 18, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-2045.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2012
Before Judges Sabatino and Fasciale.
Defendant James Davis appeals from the denial of his petition for post-conviction relief ("PCR") with respect to his 2004 conviction of attempted sexual assault, endangering the welfare of a child, and other related offenses.
The facts are described at length in our published opinion affirming defendant's conviction on direct appeal, and need not be repeated here. See State v. Davis, 390 N.J. Super. 573 (App. Div.), certif. denied, 192 N.J. 599 (2007). Briefly, defendant, a former Holmdel police officer, was found to have engaged in sexual conversations with an undercover agent posing as a fourteen-year-old girl, and planned a meeting with her. He also possessed child pornography on diskettes in his apartment. Defendant claimed that he was only "fantasy role-playing" with women he thought were over sixteen, and that his possession of the child pornography was inadvertent.
After a nine-day trial, the jury found defendant guilty on all charges presented to it. At sentencing, the trial judge imposed a seven-year custodial term, forfeiture of defendant's public employment, and Megan's Law requirements.
In his PCR petition, defendant claimed that his retained trial attorney, who had also represented him on direct appeal, was constitutionally ineffective in several ways, including:
(1) failing to call additional character witnesses who would have vouched for him; (2) failing to bring out more positive opinions from the character witnesses that testified on his behalf; and (3) failing to move to have the trial judge disqualified based on the judge's relationship with the assistant prosecutor who tried the case.
The trial court rejected defendant's PCR application without an evidentiary hearing. The court found that certain of defendant's claims were procedurally barred because they either involved issues that were already adjudicated on direct appeal, or could have been raised on direct appeal but were not. See R. 3:22-4 to -5. The court also found no merit to defendant's substantive arguments.
On his present appeal, defendant raises the following contentions:
THE COURT MISAPPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST.
ART. 1, PAR. 10 POINT TWO
THE LOWER COURT ERRED IN FINDING [DEFENDANT'S] CLAIMS WERE BARRED PROCEDURALLY FROM BEING RAISED IN THIS PETITION BECAUSE THEY WERE NOT RAISED ON DIRECT APPEAL Having considered these arguments in light of the record and the applicable law, we affirm the dismissal of defendant's petition, substantially for the sound reasons expressed in Judge Ira E. Kreizman's oral decision dated April 9, 2010. We add only the following comments.
We agree with Judge Kreizman that most of defendant's PCR claims are procedurally barred. In particular, Rule 3:22-4 bars defendant's claim that the trial judge should have been disqualified because such an issue could have been raised on direct appeal. We also concur that Rule 3:22-5 precludes repeat review of issues that were previously adjudicated in the original appeal, including claims relating to the contents of the jury charge and the admission of allegedly improper testimony from one of the State's witnesses. However, because procedural bars do not clearly apply to other aspects of defendant's claims of ineffective assistance of counsel, we shall turn to the merits of his most significant arguments.
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
When reviewing such ineffectiveness claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
We agree with Judge Kreizman that defendant has failed to present a prima facie case of such ineffectiveness. His main contentions relate to the failure of trial counsel to call additional character witnesses and in unduly limiting the character testimony from the character witnesses that he did call. These are fundamentally matters of "trial strategy," see Fritz, supra, 105 N.J. at 54, that ought not be second-guessed on review of a PCR application. See, e.g., State v. Arthur, 184 N.J. 307, 320-21 (2005) (noting that a court's review of a defense attorney's decision as to whether to call a witness should be "highly deferential").
Moreover, we agree with Judge Kreizman that defendant has failed to show that such additional proofs would have changed the outcome of the jury's verdict. The State's evidence in this case was overwhelming. The additional defense proofs that now have been identified by defendant would have been essentially cumulative of his failed effort to show that he lacked a culpable state of mind. See N.J.R.E. 403 (disfavoring the admission of cumulative testimony).
We also agree with Judge Kreizman that counsel was not deficient in failing to move to recuse the trial judge, who had served in the prosecutor's office years earlier with the assistant prosecutor and who allegedly had a friendly relationship with the current prosecutor. There is inadequate proof of any appearance of impropriety that would have required the judge's recusal. As this court has noted:
A judge is not required to withdraw from the hearing of a case upon a mere suggestion that he is disqualified to sit. Indeed, . . . it is improper for him to do so, unless the alleged cause of recusation is known by him to exist or is shown by proof to be true in fact. [Clawans v. Schakat, 49 N.J. Super. 415, 420 (App. Div.) (emphasis added) (internal quotation marks omitted), certif. denied, 27 N.J. 156 (1958).]
This is also not an instance where the claim of disqualification arises from a situation in which a former prosecutor is now involved in a matter that was pending while he was serving as prosecutor. See Ross v. Canino, 93 N.J. 402, 409-10 (1983) (determining that a former Attorney General needed to be screened from the pending proceeding that had arisen while he was serving as Attorney General). Additionally, defendant's prosecution in this case clearly arose many years after the trial judge had left the prosecutor's office.
The balance of defendant's arguments lack sufficient merit to be worthy of comment. R. 2:11-3(e)(2).
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