May 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSEPH BIANCO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-12-1401.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Nugent.
Defendant, Joseph Bianco, appeals from a Law Division order denying his petition for post-conviction relief (PCR). He contends the attorney who filed his direct appeal was ineffective for not raising as appellate issues the trial court's denial of his Michaels and Brady motions. Having considered the record in light of defendant's arguments, we conclude that counsel was not ineffective. Accordingly, we affirm.
In our decision disposing of defendant's direct appeal, we summarized the trial proceedings:
The jury heard evidence in this matter that, at the time of the alleged offenses, nine-year old E.B. lived with her mother, stepfather and two half-brothers in a two-family home; E.B.'s grandmother . . . lived in the other half of the two-family home. Defendant had been dating [her] for more than ten years and, as a result of this long-standing relationship, E.B. viewed defendant as a grandfather-figure, and referred to him as "Pop-Pop."
Defendant often took E.B. and her siblings to the park or out to eat. The jury heard testimony that, on certain of those occasions, defendant inappropriately touched E.B. The last such touching was alleged to have occurred on July 24, 2002.
Defendant testified on his own behalf and denied any wrongdoing. At the conclusion of the trial, defendant was found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
[State v. Bianco, 391 N.J.Super. 509, 511-512 (App. Div.), certif. denied, 192 N.J. 74 (2007).]
This appeal involves E.B.'s pre-trial statements. E.B. first disclosed defendant's offenses to her mother a day or two after defendant committed the last offense on July 24, 2002. E.B. and her mother were eating dinner when E.B., who seemed nervous, scared, and upset, told her mother that defendant touched "an area that he wasn't supposed to." E.B. pointed to the area of her vagina and showed her mother how defendant had touched her by moving her hand around "in a slight circle motion." E.B. said that the offenses took place in defendant's car while he was driving her either in or to a park.
The next day, E.B.'s mother notified law enforcement officers at the Rahway Police Department (R.P.D), who then notified the Union County Police Department (U.C.P.D.), the agency responsible for policing the county parks. Patrolman Wilfredo Torres responded, spoke with E.B., and later prepared a report. The report states, in pertinent part:
We arrived at HQ and the victim and family were escorted upstairs . . . . At that time Det. Debbie was notified and aware of situation. We sat the victim down along with the family and asked the victim to explain what happened in her own words. The victim stated on July 24, 2002 approx[imately] 10:45 AM she was picked up from her resident [sic] along with her [younger] brother . . . . They were taken to Rahway [Park] by . . . [defendant]. While they were riding in [defendant's] car the victim sat in the front passenger [seat] and her brother sat in the rear passenger seat. While driving [defendant] would touch her in her private part. When asked how, victim said he would reach over with his right hand while he drove the vehicle with his left hand. I asked if he penetrated her with hands or was it that he was touching her over her clothing. She said he did not penetrate[;] he was touching her over her clothing, victim said he would put his middle and ring finger against her private parts and wiggle his hand against her private part. She said she would tell him to stop and push his hands away and he would reply "Oh I didn't realize I was doing that." The victim was asked is this the first time this ever happened with [defendant]. She said no there's been other times he has touched her in her private parts.
On July 30, 2002, the U.C.P.D. referred the case to the Union County Prosecutor's Office. The next day, Detective Mary McKinlay, who was assigned to the Child Advocacy Center, interviewed E.B. Before interviewing E.B., Detective McKinlay read Patrolman Torres' report as well as statements other detectives had taken from E.B.'s mother and grandmother. Detective McKinlay videotaped E.B.'s statement.
Defendant was arrested and charged in a two-count indictment with second-degree sexual assault, N.J.S.A. 2C:14-2b (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). Following his indictment, defendant filed a motion seeking a pre-trial hearing to "[d]etermine the [r]eliability of the [t]estimony of E.B." In a supporting certification, defense counsel explained that he sought the hearing because "E.B.'s testimony is the linch-pin of the case, . . . and the initial interview has not been preserved on videotape, nor have the notes of same been provided[.]" In his supporting brief, defendant asserted that a Michaels hearing was necessary with respect to Patrolman Torres' interview of E.B. because "[w]e have no transcript of what occurred, and have no way of knowing for sure how the interview was conducted." Pointing out that Patrolman Torres conducted the interview of E.B. in the presence of her mother and grandmother, and used leading questions, defendant asked rhetorically, "who knows what occurred during the initial interrogation by Officer Torres."
Defendant suggested that the Torres interview "can be contrasted with the sanitized interview later conducted by Detective McKinl[ay], who at least ensured that [E.B.'s grandmother and mother] were not present." Although defendant asserted that "[t]he basic issue . . . to address at the taint hearing is whether the pretrial events were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts . . . [, ]" he did not assert any facts that suggested the statement E.B. made to her mother, or the statement made to Detective McKinlay, was unreliable.
The State opposed defendant's motion and the court denied it. The court acknowledged that in the absence of a videotape, defendant could not know by what method the police obtained the statement from E.B., and therefore, could not determine whether the interview was coercive or suggestive. The court ruled, however, that because defendant had the initial burden of showing "there is some basis to believe that the technique employed may have been suggestive or coercive, " the absence of any evidence suggesting that E.B. was somehow coerced by Torres' interviewing techniques "preclude[d] ordering a [Michaels] hearing[.]"
The court emphasized that by denying defendant's motion, it was "not concluding that the State has met whatever burden it needs to meet in order to introduce statements of either hearsay exceptions, excited utterance, . . . tender years . . . or as fresh complaint [evidence]." The State acknowledged its burden to establish at a separate hearing the admissibility of any hearsay statement it intended to use at trial. That hearing was conducted after jury selection but before the State presented evidence at trial.
Before the hearing was scheduled, defendant moved for an order "compelling the State to immediately produce . . . discovery, to wit, the policy/protocol of the Union County Prosecutor's office governing investigation into alleged crimes of sexual abuse, particularly those pertaining to children." Defendant argued the protocols or procedures were "particularly relevant" in view of his belief that they prohibited police from interviewing child sex-abuse victims in the presence of other detectives or relatives, and required police to keep a contemporaneous record of the interview.
The State opposed the motion and the court denied it. The court ruled that the prosecutor's protocols and procedures were not relevant to the issue of whether Patrolman Torres improperly influenced E.B. when he interviewed her.
The State subsequently notified defendant and the Court, as required by N.J.R.E. 803(c)(27), that it intended to introduce at trial E.B.'s statement to her mother and E.B.'s videotaped statement to Detective McKinlay. At the ensuing hearing, the State presented the testimony of E.B.'s mother and Detective McKinlay, and introduced E.B.'s videotaped statement.
The State did not ask the court to rule on the reliability of E.B.'s statement to Patrolman Torres. Defendant, however, called Patrolman Torres as his witness. The State objected, arguing, among other things, that the defense was attempting to "bootstrap the Michaels arguments he already lost" and "trying . . . to say . . . that the video . . . is tainted by the prior statement." Rejecting the State's argument, the court responded: "Let's hear what Officer Torres has to say . . . then we'll hear argument after that. I'll allow the testimony, however."
Defendant called Patrolman Torres, authenticated his report, and elicited his testimony that "the report accurately reflect[ed] the contents of [his] discussions with [E.B.]." Patrolman Torres confirmed E.B.'s statement that defendant had improperly touched her "a couple times." Defendant then elicited from Patrolman Torres testimony about statements E.B. made that conflicted with statements E.B. made in her videotaped statement to Detective McKinlay. Based on those contradictions, defendant argued that E.B.'s videotaped statement was unreliable.
The court determined that E.B.'s statement to her mother was admissible under N.J.R.E. 803(c)(2) as an excited utterance because it was "a spontaneous statement that was blurted out during dinner." The court further found that E.B.'s statement to her mother was not "made pursuant to any questioning, much less coercive or leading questions." Nonetheless, the court disallowed "the details to the extent proposed by the State." Rather, the court ruled the State could elicit from E.B.'s mother that E.B. "blurted out that the defendant touched her in a private part, [and] indicated her vaginal area[.]"
The court also ruled that E.B.'s videotaped statement, with some redactions, was admissible at trial. The court determined that despite Detective McKinlay's reviewing the reports from the R.P.D. and U.C.P.D., including that of Patrolman Torres, "there is no evidence that Detective McKinlay lacked investigatory independence . . . [or] pursue[d] preconceived ideas about what happened." Noting that Detective McKinlay asked E.B. "for the most part" open-ended questions, the court observed that when the detective asked E.B. leading questions, the answers "really resulted in matters that kind of helped the defendant in some instances."
The court also noted that during the two breaks in the interview, no one entered the room and E.B. remained in the room. Detective McKinlay did not repeat questions trying to "clarify 'wrong' answers, " and did not praise, cajole, bribe, or reward E.B. Recognizing that defendant had presented the testimony of Patrolman Torres in an effort to establish inconsistencies between E.B.'s statement to him and her statement to Detective McKinlay, the court ruled that defendant could explore such inconsistencies during the cross-examination of E.B. at trial. The court concluded:
I do find that statement is inherently trustworthy and will admit it. There is no doubt that [E.B.'s] answers to the questions posed by Detective McKinlay were spontaneous. In fact, I [have] never seen a more spontaneous alleged victim on tape than her. She - - there were no discrepancies, really, in the answers given on the tape.
It's the same lack of motive to fabricate, although I don't find that's a huge factor here, in light of the dearth of evidence that we have about that issue.
Her mental state at the time was a mixture of anger, frustration, and straightforwardness that made the statement more trustworthy.
There's no evidence she was manipulated by any adults. And, again, if there's an allegation that she was, that can certainly be presented, but I don't see any evidence at this time that any adult suggested any answer.
I also take into consideration the fact that [E.B.] blurted out a number of things, including what allegedly happened to her.
In addition, at one point she corrected Detective McKinlay, I think it was right before the time frame that was marked 10:35:32, she corrected the detective when she said that she told her mom on the day she fell. [E.B.] said no, it's the next day.
So she didn't just adopt Detective McKinlay's line of questioning.
Based on that, it does meet the criteria under [N.J.R.E. 803](c)(27).
The State's trial proofs consisted of the testimony of E.B., her mother, and Detective McKinlay, E.B.'s videotaped statement, and several photographs. Defendant testified and denied E.B.'s allegations. He also called Patrolman Torres as a witness to testify about his interview with E.B., in which she gave statements that contradicted the State's proofs about the number of times defendant had touched her, and about the location of the those events. On cross-examination, Patrolman Torres testified he had received no training in interviewing sexual assault victims or children.
The jury convicted defendant on both counts of the indictment, which the court later merged at sentencing. The court sentenced defendant to a seven-year term of imprisonment with an eighty-five percent period of parole ineligibility.
We affirmed defendant's conviction and sentence on direct appeal. Bianca, supra, 392 N.J.Super. at 509. The Supreme Court denied certification. 192 N.J. 74. Following the Supreme Court's denial of certification, defendant filed a PCR petition and alleged that the attorney who filed his direct appeal was ineffective for not raising as error the trial court's denial of the Michaels and Brady motions.
At the hearing on defendant's PCR petition, defendant and his appellate counsel testified. Counsel testified that he had been doing appellate work since 1973 and had filed more than 1, 150 appeals on behalf of defendants. When he filed defendant's appeal, he considered the Michaels and Brady issues, but decided not to raise them. He thought the issues that he eventually raised on appeal had a greater chance of success, and he did not believe the Brady and Michaels issues "had any significant chance of succeeding[.]" In essence, he "made a value decision not to raise them."
After reviewing the trial transcript, counsel focused on twelve potential issues for appeal. He narrowed them down based upon his thirty years of experience and his goals of "not . . . rais[ing] issues for the sake of making money, but . . . rais[ing] issues that I think are going to help my client[.]" He further explained that part of that goal "is electing not to raise certain issues which [will] just waste the Appellate Division's time and divert their attention from what I believe to be the good issues."
Counsel viewed the prosecutor's protocols and guidelines as a red herring. He explained, "[s]imply because an officer or a detective did something in accordance with protocol would not make it right, and simply because somebody did not follow protocol would [not] make it wrong."
Counsel noted that "[t]here is nothing in his testimony, either at the . . . hearing or during the course of the trial that even remotely suggested that what he had done with the victim was in any way inappropriate." Based on the testimony trial counsel had elicited from Patrolman Torres at the pre-trial hearing and at the trial, appellate counsel determined that nothing suggested that a Michaels hearing would have been successful. Further, "the jury got the benefit of any problems, any inconsistencies, since [Patrolman Torres] was called as a witness during trial."
Defendant testified that he told appellate counsel about the many issues he wanted to raise on appeal. He claimed appellate counsel told him that "all you're allowed is one issue [and] . . . [a]ny more than that would just cloud the Appellate Division." According to defendant, the attorney explicitly refused to raise the Michaels and Brady issues "because that would just cloud the [A]ppellate [C]ourt, and they wouldn't understand what he was bringing up."
The court denied defendant's PCR petition, finding appellate counsel's testimony entirely credible. The court also found that appellate counsel had thoroughly reviewed the trial file and made a reasoned decision as to what issues to raise on appeal.
The court then concluded that even if the Michaels and Brady issues had been raised, they would not have affected the outcome of defendant's appeal, because the trial court had correctly applied the law when it denied defendant's Michaels and Brady motions. As to the Michaels issue, the PCR court concluded, as had the trial court, that defendant did not meet his burden of offering evidence that law enforcement officers had used suggestive or coercive interview techniques. As to the Brady issue, the PCR court concluded, as had the trial court, the documents defendant sought were irrelevant to whether Patrolman Torres actually employed techniques that would have affected the reliability of E.B.'s statement.
The court entered a confirming order and this appeal followed. Defendant raises the following points for our consideration:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION VACATED BECAUSE APPELLATE COUNSEL'S DECISION NOT TO RAISE THE MICHAELS ISSUE AND THE BRADY ISSUE ON DIRECT APPEAL RESULTED IN A DEFICIENT PERFORMANCE AND THE ENSUING PREJUDICE TO DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INNEFFECTIVE ASSISTANCE OF COUNSEL
(A) SINCE THE ISSUES WERE MERITORIOUS APPELLATE COUNSEL'S DECISION SHOULD NOT HAVE BEEN ATTRIBUTED TO LEGITIMATE AND REASONABLE APPELLATE STRATEGY
(B) SINCE BOTH TRIAL COUNSEL AND THE DEFENDANT ADVISED APPELLATE COUNSEL THAT THE ISSUES SHOULD BE RAISED ON DIRECT APPEAL, APPELLATE COUNSEL'S FAILURE TO DO SO, EVEN IF IN A PERFUNCTORY MANNER BY MERELY LISTING THEM SO THAT THE APPELLATE DIVISION COULD CONSIDER THEM, VIOLATED THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO EQUAL PROTECTION OF THE LAW AND WAS INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW)
THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE DEFENDANT'S RIGHT TO EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
To prove ineffective assistance of trial counsel, a defendant must satisfy the Strickland two-part test by demonstrating "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 "there is 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, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).
This standard applies as well to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J.Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). Nevertheless, an appellate attorney is not required to advance every argument the defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987, 994 (1983); Gaither, supra, 306 N.J.Super. at 515-16. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones, supra, 463 U.S. at 751-52, 103 S.Ct. at 3313, 77 L.Ed.2d at 994.
With those principles in mind, we turn to defendant's argument that his appellate counsel was ineffective for not appealing the trial court's denial of his motion for a Michaels hearing. Concerned that the use by law enforcement officers of "coercive or highly suggestive interrogation techniques" when interviewing sexually abused children of tender years might "undermin[e] the reliability of statements and subsequent testimony concerning such events, " the Supreme Court has mandated a pretrial "taint" hearing in cases where a defendant makes "a showing of 'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." Michaels, supra, 136 N.J. at 312, 320 (citations omitted). In Michaels, the Court concluded that
the kind of practices used here - - the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning,
vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions - - constitute more than sufficient evidence to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing.
[Id. at 321.]
If a "defendant establishes that sufficient evidence of unreliability exists, the burden . . . shift[s] to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence." Ibid. The trial court must then decide whether,
despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques.
The facts before us present a nuanced question concerning the difference in language the Supreme Court used when it decided Michaels; and whether the Court's use of the term "some evidence, " used initially, id. at 312, is equivalent to the term "sufficient evidence, " used later. Id. at 321.
Defendant arguably made a threshold showing that he was entitled to a Michaels hearing. Patrolman Torres did not videotape his interview of E.B., and either did not make, or did not maintain, contemporaneous notes of the interview. He also questioned E.B. in front of her mother and grandmother. The absence of a videotape can be considered as evidence that a child's statement concerning sexual abuse is untrustworthy. See State v. P.S., 202 N.J. 232, 253-54 (2010). Likewise, an officer's failure to retain contemporary notes of a child witness interview is a "factor weighing against trustworthiness[, ]" id. at 254, as is "ongoing contact with peers." Michaels, supra, 136 N.J. at 321. Thus, defendant made a showing of "some evidence" that E.B.'s statements were the product of suggestive or coercive interview techniques. Id. at 320.
On the other hand, Patrolman Torres documented the interview in his report, and E.B.'s documented statements were not significantly different from the spontaneous statements she had made to her mother the previous evening. Nothing in Patrolman Torres' report suggests that E.B.'s spontaneous statements were molded by leading questions or other improper techniques. To the contrary, in response to one question, E.B. said defendant had not touched her beneath her clothing. Thus, defendant did not establish "sufficient evidence to support a finding that the interrogation  created a substantial risk that [E.B.'s] statements and anticipated testimony [were] unreliable[.]" Id. at 321.
We need not resolve these nuanced distinctions, however, because the State did not introduce at trial E.B.'s statement to Torres; defendant has not appealed the trial court's ruling that E.B.'s statement to McKinlay is trustworthy; and the evidence in the record demonstrates that nothing that occurred during Torres' interview of E.B. tainted the videotaped statement E.B. gave to McKinlay.
During the hearing concerning the trustworthiness of E.B.'s statement to Detective McKinlay, the State objected to the defense calling Patrolman Torres. Specifically, the State objected to defendant attempting to show that E.B.'s statement to McKinlay was "tainted by the prior statement." The court overruled the State's objection. Thus, defendant had the opportunity to test that theory. The court rejected that argument. Acknowledging that McKinlay had read Torres' report before interviewing E.B., the court determined that McKinlay had formed no preconceived notion based on the reports she had read, and further found that there was no evidence that E.B. had been manipulated by any adults.
Considering defendant's opportunity to examine Torres about his interview of E.B., and considering the trial court's findings thereafter that E.B.'s videotaped statement was spontaneous and uninfluenced by manipulation, there is no reason to conclude that defendant's direct appeal of that issue would have succeeded. Appellate counsel made a sound tactical decision not to raise it. Stated differently, defendant did not establish either Strickland prong.
We reach the same conclusion concerning the Brady issue. Unquestionably, the prosecution must disclose all exculpatory evidence that is material to either defendant's guilt or punishment. Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218 (1963); State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999). "Evidence impeaching the testimony of a government witness falls within the Brady rule when the reliability of the witness may be determinative of a criminal defendant's guilt or innocence." State v. Carter, 91 N.J. 86, 111 (1982).
To establish a Brady violation, a defendant must demonstrate that: "(1) the prosecution suppressed evidence; (2) the evidence was favorable to the defense; and (3) the evidence [was] material." State v. Martini, 160 N.J. 248, 268 (1999). Evidence is "material" if there was a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 285 (internal quotation marks and citations omitted). A reasonable probability means "one that is sufficient to undermine confidence in the outcome." Id. at 269 (internal quotation marks and citation omitted). Evidence that is impeaching may be material if it probably would have changed the verdict. State v. Henries, 306 N.J.Super. 512, 535 (App. Div. 1997).
Defendant has failed to demonstrate that the outcome of the pre-trial hearing, his trial, or his appeal would have been different had appellate counsel raised the Brady issue. The policies and procedures that defendant requested from the State had little, if any relevance to the determination of whether E.B.'s statement to Patrolman Torres was reliable.
Patrolman Torres was untrained in interviewing children of tender years, and was therefore likely unaware of any protocol or procedures. His lack of knowledge does not, however, suggest that he induced E.B. to make untrustworthy statements about defendant. Defendant's examination of Patrolman Torres, at the pre-trial hearing and at trial, suggested that the statement was trustworthy. In fact, defendant deemed it sufficiently trustworthy to use it at trial to attempt to attack the State's proofs. Defendant simply did not establish a reasonable probability that had the State produced the protocols or procedures, the result of either the pre-trial proceeding or the trial would have been different. In other words, defendant did not establish a Brady violation; and therefore did not establish that appellate counsel was ineffective for not raising that issue on appeal.