October 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-00002.
Jospeh E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
Before Reisner, Alvarez and Ostrer, Judges.
Defendant R.B. appeals from his conviction for two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); one count of second-degree sexual assault, N.J.S.A. 2C:14-2b; and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He also appeals from the February 25, 2011 order denying his petition for post-conviction relief (PCR). We consolidated the appeals for purposes of this opinion. In Docket No. A-006177-10, we affirm the conviction and the sentence. In Docket No. A-1729-11, we affirm the denial of defendant's PCR petition.
Defendant was accused of sexually molesting his stepdaughters, L.H. and T.H. (the girls or the twins). The State alleged that the crimes took place between 2000 and 2005, beginning when the girls were five years old. They reported the assaults when they were eleven years old. By the time the case came to trial in 2009, the girls were fourteen. The State's case rested on their testimony. There was no forensic evidence of the alleged sexual activity.
The girls were the children of M.W.B., and Ted, a man to whom she was not married. When the girls were about three years old, their mother left the girls with Ted and moved in with defendant, whom she later married. The girls and their brother, R.H., would regularly visit their mother and defendant, first at an apartment in Maple Shade and later at a condominium in Evesham. The girls testified that, when they were about five years old, defendant began sexually molesting them during the visits at the Evesham residence.
According to both girls, the assaults took place at night, during the weekend visits with the mother and defendant. The twins shared a bunk bed in a back bedroom, while their stepsister, A.W., slept in a separate bed in that room. The twins each described incidents in which they awoke to feel defendant pulling up their sleep shirts, pulling down their underwear and touching their genitals. L.H. testified that defendant also touched her chest area and, on one occasion, placed his penis in her mouth. L.H. testified that she slept on the top bunk while her sister slept on the bottom bunk. Both girls described how defendant would stand on the bottom bunk in order to reach L.H. in the top bunk. According to L.H., on some occasions she would sleep in the bottom bunk and T.H. would sleep on the top bunk. On some of those occasions, defendant got into the bed with L.H., pulled her legs apart, touched her vagina with his penis, and placed it inside her vagina. She testified that this was painful.
Both girls testified that they did not complain to their mother, because they were afraid she would not believe them. L.H. testified that she had told lies in the past, and thought her mother would think this was another lie. Both girls explained that they first disclosed defendant's actions to a friend, J.V., after she told them that she had been molested. The friend urged them to tell their parents what happened to them. According to both girls, Ted overheard them discussing whether they should tell someone or not, and asked what they were talking about. At that point, they decided to tell him.
Defendant did not testify at the trial. Instead, the defense called two of the investigating detectives, in an attempt to establish that the girls' statements to the police contradicted their trial testimony in some respects, and that the police conducted an inadequate investigation. During cross-examination, the prosecutor elicited from the detectives that defendant and his wife disposed of the bottom bunk-bed mattress (but not the top mattress) through an internet trading website a couple of months before the investigation commenced.
The defense also presented testimony from the girls' mother and from a series of character witnesses. According to M.W.B., her romantic relationship with the girls' father, Ted, ended in the fall of 1996, when the children were very young. However, she and Ted continued "financially living together" in the same apartment, essentially as housemates, until October 1998 when she moved in with defendant. She testified that before the girls made their accusations against defendant, they had expressed a desire for her and Ted to renew their relationship.
M.W.B. also testified that T.H. had recanted her accusations. She recounted a 2007 telephone call with T.H. in which the girl stated that "she didn't understand why this was still going on and that nothing had happened anyway." M.W.B. testified that in 2008, T.H. again told her that "nothing . . . had happened" and also asked "what would happen" to defendant if it turned out that someone else was the culprit. In T.H.'s direct testimony, she had denied making any of those statements.
M.W.B. testified that on occasion when the children were visiting at the Evesham apartment, she saw defendant take L.H. into one of the bedrooms for an extended period of time. However, when her counsel asked if she had entered the room "to see what was going on, " M.W.B. replied that she had, and she confirmed that she never saw defendant doing anything inappropriate. According to M.W.B., the children did not complain to her about defendant until their 2005 disclosure. She also testified that she laundered all the bed linen in the house and never saw signs of sexual activity on the children's sheets.
In an effort to show that the children might have acquired some sexual awareness from a source other than defendant's alleged conduct, defense counsel elicited from M.W.B. testimony that, while she was still living with Ted, he had a subscription to Playboy magazine. She did not testify as to whether the children ever saw the magazines. She further testified that Ted had nude photographs of her, taken when she was sixteen years old, and he kept them on his dresser where the children could see them. She was not asked, and did not explain, why she permitted him to do that. In their testimony, the girls denied seeing any nude pictures on their father's dresser.
According to M.W.B., in October 2005, she received a telephone call from her mother stating that there was something she needed to hear from L.H. and urging her to come to Ted's house immediately. When M.W.B. arrived, L.H. told her that defendant "[had] sex" with her. M.W.B. immediately examined the child and found no evidence of injury. She believed the child might be lying. Instead of calling the police or the Division of Youth and Family Services (DYFS), M.W.B. arranged for L.H. to be interviewed, two weeks later, by a retired therapist recommended by her mother. On cross-examination, she admitted to having a similar skeptical reaction when she learned of T.H.'s accusations, which she claimed she did not hear about until a week after L.H.'s disclosure. She questioned T.H. and was not convinced. She did not take either child to be examined by a doctor, nor did she notify the authorities. She testified that the therapist who spoke to L.H. found the interview "inconclusive." She also testified that L.H. had a history of lying.
M.W.B. first testified that, after the accusations were made, the children visited her house only when defendant was not present. However, she recalled that the entire family spent Thanksgiving and Christmas, 2005, and New Year's Day, 2006, at a relative's house, and the children seemed at ease interacting with defendant.
Later in her testimony, M.W.B. testified that, at some point after the girls made the accusations against defendant, a situation arose in which she and Ted both needed to work and could not find a babysitter for the girls. According to M.W.B., she and Ted allowed the girls to stay at her and defendant's home, and allowed defendant to babysit the children for those three days. She testified that the girls were asked for their consent to the arrangement and did not object. In their testimony, the girls denied that any of this occurred. They testified that they did not go to their mother's home when defendant was present.
On cross-examination, M.W.B. admitted that when the children's school reported their allegations to DYFS, the police were also notified. This occurred several months after the girls first told M.W.B. that defendant molested them. The police asked M.W.B. to participate in a "consensual intercept" – a monitored telephone call with defendant - to determine whether he would admit to the allegations. She refused. She admitted telling the police that she believed someone "traumatized" her daughters but that defendant was not the culprit.
Called as a defense witness, M.W.B.'s mother (grandmother) testified that she was present on the evening in 2005 when both girls first alleged that defendant "touched" them inappropriately. She stated that she told M.W.B. about both girls' allegations that same night and that, at her suggestion, M.W.B. immediately examined both girls. The grandmother testified that she suggested the name of a retired therapist, whom she knew. She further testified that based on her knowledge of both girls' characters, they were untruthful children.
Called by the defense, defendant's mother also testified that the girls had a reputation for being untruthful. She further testified that, when the entire family was at her house for Thanksgiving in 2005, the girls wanted to spend time with her and with defendant. The defense also presented several witnesses who attested to defendant's law-abiding character.
On his direct appeal, defendant presents the following points for our consideration:
THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT [R.B.] UNLAWFULLY COMMITTED SEXUAL ASSAULTS AGAINST T.H. AND L.H. AND THAT HE ENDANGERED THE WELFARE OF THOSE CHILDREN.
A. Judgment of Acquittal.
B. The Jury's Verdict Was Against The Weight Of The Evidence.
THE JURY HEARD IMPERMISSIBLE OTHER CRIMES EVIDENCE THROUGH THE TESTIMONY OF T.H. (Not Raised Below).
THE TRIAL COURT ERRONEOUSLY PERMITTED THE JURY TO HEAR THE PLAYBACK OF ONLY THE DIRECT TESTIMONY OF THE WITNESSES AND NOT THE CROSS-EXAMINATION.
THE TRIAL COURT ERRED IN PERMITTING THE DETECTIVE TO TESTIFY THAT HE BELIEVED THE CHARGES AGAINST [R.B.] WERE PROPER.
THE PROSECUTOR'S COMMENTS DURING HIS SUMMATION WERE INAPPROPRIATE AND DENIED [R.B.] A FAIR TRIAL.
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.
THE COURT ERRONEOUSLY ORDERED THAT [R.B.]'S SENTENCE FOR THE TWO COUNTS OF AGGRAVATED SEXUAL ASSAULT RUN CONSECUTIVE TO EACH OTHER. THE COURT ALSO DOUBLE COUNTED AN AGGRAVATING FACTOR AND FAILED TO CONSIDER MITIGATIVE FACTORS RESULTING IN AN EXCESSIVE SENTENCE.
Having reviewed the entire record, we conclude that only defendant's Point III merits extended discussion. The trial was recorded on video, making video playback the only practicable means to re-play testimony during jury deliberations. The trial was conducted on three successive days, May 5-7, 2009. The two girls testified on the first day of the trial. The jury began deliberating at around 2:30 p.m. on the third day. They returned their verdict at about 6:45 p.m. During their deliberations, they asked for a playback of the testimony of the two girls. After being questioned by the judge, they made clear that they only wanted to hear the direct testimony.
Shortly after hearing the playback, they sent out a question asking whether they had to find defendant guilty of all of the charges or whether they could convict him of only some of the charges. The judge instructed them that they had to consider each charge separately. Shortly thereafter, they returned the verdict, acquitting defendant of forcing L.H. to perform fellatio, but convicting him of all the other charges.
Defendant contends the judge should have required the jury to hear the cross-examination of both girls, because it contained significant impeachment of their testimony. At the time the trial was conducted in 2009, the controlling law on jury readbacks was set forth in State v. Wilson, 165 N.J. 657 (2000). There the Court emphasized the trial court's obligation to first ascertain the scope of the jury's request and then to honor it:
[A]s a general rule, if a jury requests a readback of the testimony of a witness, the readback should include both direct and cross-examination. The reason is obvious: cross-examination affords a full view of the witness's testimony including inconsistencies and impeaching material. Thus, a jury's uncircumscribed request for a readback of a witness's testimony ordinarily is "presumed to include cross-examination."
That is not to suggest that a witness's entire testimony is required to be read back in every single case. We assume that when jurors request a readback, what is being sought is "only . . . those portions of the testimony about which they are in doubt or disagreement." Accordingly, where a request is clearly circumscribed, the trial court has no obligation to compel jurors to hear testimony they have not asked for or to continue a readback after they have expressly indicated that they have heard enough. That is so even if one of the parties registers a request for a further readback.
But if the scope of the jury's request is unclear or if something occurs during the readback to raise a question about the extent of the testimony sought, the obligation of the trial court is to ascertain the will of the jury. For example, in this case, the jury did not initially limit its request to direct examination. However, at the end of the readback of the direct testimony of a witness, when the tape was stopped briefly, the reconstructed record reveals that the foreperson of the jury said something to the effect of "okay, fine, " and the jurors got up to leave. The trial court and the lawyers took that as a signal that the jurors had heard enough, although defense counsel continued to argue that they should be "required" to hear the whole statement. To lay to rest any possible doubt regarding the meaning to be ascribed to the jurors' words and actions, and for record purposes, it would have been preferable for the trial court to have asked the jury directly whether it wished to hear the cross-examination of the witness. Whenever there is the slightest doubt, such an inquiry should ensue.
[Id. at 660-62].
The trial judge scrupulously adhered to the requirements of Wilson. However, two years after this trial was conducted, the Court decided State v. Miller, 205 N.J. 109 (2011), which specifically addressed the use of playbacks in video-recorded trials. In Miller, there was no issue concerning a jury's request to hear limited testimony. After the jury requested a playback of a witness's testimony, the judge ordered a play-back of the entire direct and cross-examination of that witness. However, the Court set forth guidelines for the playback of video testimony in future cases.
Citing Wilson, the Court emphasized the trial courts' discretion to permit limited playbacks, after determining precisely what testimony the jury wishes to have played back. Id. at 122-23. But the Court emphasized that, ordinarily, a playback must include both the direct and cross-examination:
(1) As noted before, judges should ordinarily grant a jury's request to play back testimony. They should not decline a request simply because it "would take time."
(2) As a general rule, after redacting sidebars and inadmissible testimony to which counsel objected, the entire testimony requested should be played back — including direct and cross examination — so that evidence may be considered in its proper context. See Wilson, supra, 165 N.J. at 660-61. Only then can a jury hear both direct proofs as well as inconsistencies and impeachment material. Trial judges nonetheless retain discretionary authority to try to narrow a jury's request if it calls for the playback of extensive testimony.
(3) Courts should honor a jury's specific request to hear only limited parts of a witness' testimony — provided, once again, that playback includes relevant direct and cross examination. Jurors should not be required to watch or hear more testimony than they ask for. If necessary, the trial judge can clarify what testimony the jury wants repeated.
[Id. at 122-23 (additional citations omitted).]
In State v. A.R., 213 N.J. 542, 555 (2013), the Court repeated the "precautions" a trial court must take during video replays of testimony, including "providing the entirety of the requested testimony, including direct and cross examination."
We certainly cannot fault the trial judge for following Wilson, which was the prevailing law at the time. Further, it is unclear whether Miller absolutely and in all cases requires that a jury hear a playback of both direct and cross-examination, even if the jury has explicitly indicated to the trial judge that it only wants a playback of the direct testimony. However, applying Miller, we conclude that if it was error not to play back both cross and direct, the error was harmless.
Having read the trial transcript, we find that the cross-examination of these girls was not particularly effective, and the most significant contradictions in the testimony were not between each girl's direct and cross. They were between their respective direct testimonies. For example, L.H. testified that she sometimes slept in the bottom bunk, although she usually slept in the top bunk. However, T.H. testified that L.H. always slept in the top bunk. There were also contradictions in the testimony concerning whether they discussed defendant's improper conduct with each other before they revealed it to their mutual friend J.V. It is understandable that the jury would have wanted to hear each girl's direct testimony, one after the other, to compare their versions.
Moreover, if the jury heard a playback of the cross, they would also, presumably, have had to hear a playback of the redirect, which was effective in neutralizing most of the cross. On this record, we conclude that defendant was not prejudiced because the jury did not hear a playback of the girls' entire trial testimony. Further, the record does not support defendant's contention that the jurors wanted to skip hearing the cross-examination because they felt rushed. It is clear from their dialogue with the judge that he was not rushing them. Rather, the jurors wanted to stay as long as required to finish their deliberations.
Defendant's remaining arguments warrant little discussion. See R. 2:11-3(e)(2). Defendant contends that the trial court should have granted his motion for a judgment of acquittal, because the girls were not believable witnesses and there was no corroborating evidence. For similar reasons, he argues that the verdict was against the weight of the evidence. We cannot agree.
On a Rule 3:18 motion for a judgment of acquittal at the end of the State's case, the trial court
must determine . . . whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-49 (1967).]
We apply the same standard in reviewing the trial court's decision. State v. Pickett, 241 N.J.Super. 259, 262 (App. Div. 1990).
On a motion for a new trial, premised on the verdict having been against the weight of the evidence, the trial court considers whether "it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1.
A trial court may only set aside a jury verdict as against the weight of the evidence if, considering the jury's opportunity to assess the witnesses' credibilities, a manifest denial of justice clearly and convincingly appears. See R. 3:20-1. The jury is free to believe or disbelieve a witness's testimony. See State v. Reyes, 50 N.J. 454, 464 (1967). On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error.
[State v. Saunders, 302 N.J.Super. 509, 524 (App Div. 1997).]
We review the trial judge's decision for abuse of discretion. See State v. Artis, 36 N.J. 538, 541 (1962).
Applying those standards, we find no error in the trial judge's decision to deny defendant's motions under either Rule 3:18 or Rule 3:20-1. The victims' testimony was not inherently incredible. Although their testimony was contradictory in some respects, it was consistent in its most important details. If believed, their version of events provided ample proof to support defendant's conviction. Moreover, the defense case rested largely on testimony from the girls' mother, M.W.B. Reasonable jurors could have found her highly unsympathetic and her testimony not believable. They could also have found it suspicious that she and defendant discarded the girls' mattress after they revealed the molestation to their parents but before the police became involved.
Defendant next complains of error in Detective Cranston's trial testimony, which he claims constituted an impermissible opinion on his guilt. See State v. McLean, 205 N.J. 438, 460 (2011). We find nothing impermissible in the testimony. As previously noted, part of the defense was an attack on the police investigation. Consistent with that litigation strategy, the defense called Detective Cranston, one of the investigating officers, as a defense witness. Defense counsel asked Cranston a series of questions implying that the detective had conducted an inadequate and biased investigation. In response, on cross-examination, the prosecutor asked Cranston a series of questions designed to show that he conducted a fair and thorough investigation. In that context, he asked Cranston if he filed charges based on his investigation in every case he handled. The detective replied that he did not. The prosecutor then asked Cranston if he was "satisfied" that the charges he filed in this case were proper. However, Cranston did not answer, because defense counsel objected and the prosecutor did not pursue that question. We find nothing objectionable in the questions Cranston did answer.
Defendant also claims the prosecutor committed misconduct in commenting on M.W.B.'s conduct in failing to believe her children's allegations and refusing to participate in a consensual intercepted phone call to defendant. There was no objection to those remarks, and we find they were a fair comment on the evidence. In fact, in his summation, defense counsel anticipated that the prosecutor might comment on the mother's actions, and reminded the jury that her conduct was not the issue in the case. However, we find that the mother's conduct was relevant to her credibility. Much of M.W.B.'s testimony was aimed at convincing the jury that her daughters were untruthful. The State was entitled to present evidence of her bias.
The State also needed to explain to the jury why the children did not report the abuse earlier. The girls testified that they delayed reporting defendant's conduct, because they were afraid their mother would not believe them. In summation, the prosecutor was entitled to argue to the jury that the children's fears were justified, because M.W.B. was a parent who put her relationship with her husband ahead of her children's well-being.
Addressing defendant's Point II, we find no plain error in T.H.'s passing comment about her brother, R.H. The testimony arose in this context. During T.H.'s testimony, the prosecutor questioned her as to how long the sexual assaults lasted, and the following exchange occurred:
Q: Okay. And how old were you when it stopped?
A: Ten or eleven.
Q: When it stopped with you?
Q: When you say both, what do you mean both?
A: I mean, like all of us, me, [L.H.] and [R.H.].
Defense counsel did not object. The prosecutor then asked if T.H. had seen defendant touch "any of the other children in the house, [R.H.] and [A.W.]?" to which T.H. replied "No." We conclude that the prosecutor's follow-up question, which referred to the brother and the step-sister, effectively neutralized any possible implication that T.H. was accusing defendant of molesting anyone besides herself and L.H. Nor do we find any plain error in Cranston's statement that he interviewed "multiple victims." Taken in context, this testimony did not imply that there were victims other than T.H. and her sister.
Defendant's further arguments on this point, and in Point VI, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm defendant's conviction.
Lastly, defendant contends that the sentence was excessive. We find no abuse of discretion or other error in the twenty-six year sentence, which was eighteen years lower than the forty-four year sentence demanded by the State. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 365-66 (1984). The judge properly imposed consecutive sentences for the aggravated sexual assaults on the two victims. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986). However, she imposed concurrent sentences on the child endangerment convictions, even though she found they did not merge with the sexual assault convictions. Defendant's arguments on this point warrant no further discussion. See R. 2:11-3(e)(2). We affirm the sentence, substantially for the reasons stated by Judge Jeanne T. Covert on the record on February 19, 2010.
Next we address defendant's appeal from the order denying his petition for post-conviction relief. On this appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN DENYING [R.B.]'S PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE IT WAS SHOWN THAT COUNSEL FAILED TO PREPARE WITNESSES AND DID NOT PROPERLY ADVISE [R.B.] AS TO HIS RIGHT TO TESTIFY.
A. Trial Counsel Failed To Prepare Witnesses.
B. [R.B] Was Denied Effective Assistance Of Counsel Where His Trial Attorney Improperly Advised Him Not To Testify On His Own Behalf.
THE PCR COURT IMPROPERLY DENIED [R.B]'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN THIS MATTER.
THE PCR COURT ERRED IN HEARING [R.B.]'S PETITION FOR POST CONVICTION RELIEF WHERE THE PETITION WAS BARRED BY R. 3:22-2.
[R.B.] DID NOT RECEIVE EFFECTIVE ASSISTANCE OF PCR COUNSEL IN THAT COUNSEL FILED [R.B.]'S PCR PETITION PRIOR TO FILING A DIRECT APPEAL AND FAILED TO SUPPORT CLAIMS RAISED IN THE PETITION WITH AFFIDAVITS.
In a pro se supplemental brief, defendant raises the following additional arguments:
THE DECISION TO FOREGO FILING A DIRECT APPEAL WAS A GROSS DERELICTION OF DUTY ON THE PART OF THE ATTORNEY REPRESENTING APPELLANT DURING POST-VERDICT PROCEEDINGS. (Not Raised Below).
THE PROSECUTOR IMPROPERLY ELICITED TESTIMONY TO SHOW THAT APPELLANT'S WIFE REFUSED TO COOPERAT[E] WITH AUTHORITIES WHO WANTED TO OBTAIN A CONSENSUAL INTERCEPT, AND THEN MADE IMPROPER COMMENTS DURING SUMMATION TO SUGGEST THAT APPELLANT'S WIFE'S ACTIONS SHOULD WEIGH IN THE DETERMINATION OF APPELLANT'S GUILT OR INNOCENCE.
IT WAS PLAIN ERROR FOR THE TRIAL COURT TO PLAY BACK THE DIRECT TESTIMONY OF L.H. AND T.H. WITHOUT PLAYING BACK THEIR CROSS-EXAMINATION AS THEIR CROSS-EXAMINATION WAS BOTH MATERIAL AND IMPEACHING. (Not Raised Below).
APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AND ON DIRECT APPEAL. (Not Raised Below).
A. Trial Counsel Was Ineffective For Failing To Appeal The Decision To Replay Only The Victims' Direct Testimony Without Also Replaying Their Cross-Examination.
B. Trial Counsel Was Ineffective For Failing To Challenge The Reliability of L.H.'s Testimony By Neglecting To Question Det. Cranston About L.H.'s Inconsistent Claim That Appellant Ejaculated In Her Mouth.
C. Trial Counsel Was Ineffective For Failing To Request A Pre-Trial Hearing To Determine The Reliability Of The Testimony Of L.H. And T.H.
D. Trial Counsel Was Ineffective For Not Objecting To The Prosecutor's Remarks During Summation.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL ON INITIAL REVIEW OF CLAIMS THAT TRIAL COUNSEL WAS INEFFECTIVE. (Not Raised Below).
A. PCR Counsel Knew Or Should Have Known That He Had A Duty To Obtain An Affidavit Or Certification From A.W. When Presenting A Claim That Trial Counsel Failed To Call An Eyewitness At Trial.
B. PCR Counsel Has An Obligation To Make Sure Factual Allegations Are "Supported By Affidavits Or Certifications Based Upon The Personal Knowledge Of The Affiant Or The Person Making The Certification.
C. PCR Counsel's Omission Deprived Appellant Of The Right To Effective Assistance Of Counsel On His Initial Review Collateral Proceeding.
We find no merit in any of defendant's PCR arguments. We affirm substantially for the reasons stated by Judge Michael J. Haas in his thirty-two page written opinion dated February 25, 2011. We add the following comments.
Defendant's PCR arguments are primarily based on bald assertions, unsupported by witness affidavits or other legally competent evidence. See State v. Cummings, 321 N.J Super. 154, 166-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant argues that his attorney pursued unsuccessful and ill-conceived litigation strategies. But he provides no evidence that a different litigation strategy would have been more successful. As Judge Haas noted in his opinion, defendant did not provide a certification attesting that he wanted to testify at his trial or stating what his testimony would have been. He also did not support his petition with a certification from his daughter, A.W., attesting that she would have testified at the trial or what testimony she would have provided. Further, the record does not indicate that calling A.W. as a witness would have been a wise litigation strategy.
In a statement to the police, A.W., who was seven years old at the time, recounted that L.H. told her in some detail the ways in which defendant molested her. Moreover, A.W. told the police that defendant took L.H. into a bedroom several times and closed the door. A.W. also stated to the police that when the twins first made their sexual assault allegations, defendant told her not to talk to anyone about it because he could get arrested. He also told her that everyone in her class at school would laugh at her if the sexual allegations became public. A.W. further stated that defendant beat L.H. with a belt after she made the allegations of sexual abuse. And A.W. told the police that her mother yelled at defendant, telling him "don't do that ever again, " and "they will get divorced if this happens one more time." The prosecutor could have cross-examined A.W. about all of those issues.
Defendant's assertion that his counsel failed to undertake a thorough investigation assumes, without proof, that such an investigation would have yielded evidence helpful to the defense Absent evidence it is just as likely that defendant's trial counsel pursued the best defense strategy he could devise in light of the witnesses available to him Defendant's PCR submissions failed to meet either standard of the two-part test set forth in Strickland v Washington 466 U.S. 668 687 104 S.Ct. 2052 2064 80 L.Ed.2d 674 693 (1984) (defendant must prove that counsel provided ineffective assistance and that counsel's unprofessional errors prejudiced the defense) See State v. Fritz 105 N.J. 42 58 (1987) Therefore he also was not entitled to an evidentiary hearing on his petition See State v Preciose 129 N.J. 451 462-63 (1992)
After the State filed its brief on this appeal defendant filed a pro se brief and a motion to supplement the record with a written statement from AW That statement is not in the form of a certification or an affidavit and it does not constitute legally competent evidence Moreover given AW's prior contemporaneous statements to the police it is highly unlikely that her testimony would have changed the outcome of the trial