Opinion
A-2228-20
03-08-2023
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM T. LIEPE, Defendant-Appellant.
James R. Wronko argued the cause for appellant (Wronko Loewen Benucci, attorneys; Gilbert G. Miller, on the brief). John Santoliquido, Assistant Prosecutor, argued the cause for respondent (William Reynolds, Atlantic County Prosecutor, attorney; Debra B. Albuquerque, Assistant Prosecutor, of counsel and on the brief).
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued February 14, 2023
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2766.
James R. Wronko argued the cause for appellant (Wronko Loewen Benucci, attorneys; Gilbert G. Miller, on the brief).
John Santoliquido, Assistant Prosecutor, argued the cause for respondent (William Reynolds, Atlantic County Prosecutor, attorney; Debra B. Albuquerque, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sumners and Fisher.
PER CURIAM
In this appeal, defendant contends that the trial judge erroneously denied his post-conviction relief (PCR) petition. We agree with that part of defendant's appeal in which he contends the PCR judge mistakenly denied an evidentiary hearing and, therefore, vacate the order denying relief so that the issues may be developed at an evidentiary hearing.
I
Defendant was convicted of first-degree aggravated manslaughter and two counts of second-degree aggravated assault, arising from a tragic 2011 auto accident in Hamilton Township that caused the death of one and severely injured two others. He was sentenced to consecutive prison terms of twenty, seven, and five years.
In an earlier appeal, we concluded that the aggregate thirty-two-year prison term - imposed on a defendant who was fifty-eight at the time of the incident and sixty-two at the time of sentencing and had no prior criminal history - was shocking to the judicial conscience; we remanded for resentencing. State v. Liepe, 453 N.J.Super. 126 (App. Div. 2018). The Supreme Court reversed and reinstated the judgment of conviction. State v. Liepe, 239 N.J. 359 (2019).
Defendant filed a timely PCR petition, arguing his trial attorney was ineffective in a number of ways. Without conducting an evidentiary hearing, the PCR judge denied relief for reasons expressed in a written decision.
Defendant appeals, arguing that the judge erred in denying relief without providing him with an evidentiary hearing for the following reasons:
I. [DEFENDANT'S] TRIAL COUNSEL WAS CONSTITUTIONALLY DEFICIENT IN OPPOSING [THE STATE'S EXPERT'S] CONCLUSION THAT DRIVERS WITH A 0.19 BAC ARE 60 TIMES MORE LIKELY TO BE INVOLVED IN A FATAL AUTOMOBILE ACCIDENT THAN A PERSON WITH A 0.00 BAC, BECAUSE HE
A. Failed to Consult with and retain an expert who could refute this conclusion;
B. Failed to Demand a Rule 104 Hearing to Determine its Admissibility and Failed to Object to its Admission;
C. Failed to Impeach the Conclusion by Effectively Cross-Examining [The State's Expert] and Presenting Contrary Expert Opinion;
D. Made Summation Remarks Which Accepted the Conclusion's Validity and Relevance and Effectively Allowed the Jury to be led to a Guilty Verdict on Aggravated Manslaughter; and
E. Failed to Request[] Instructions Which Would Preclude a Directed Verdict.
II. DEFENSE COUNSEL['S] HANDLING OF THE MOTION TO SUPPRESS EVIDENCE OF THE WARRANTLESS SEIZURE OF HIS BLOOD SAMPLES WAS GROSSLY DEFICIENT.
III. COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS A JUROR FOR CAUSE WHEN THE JUROR RECOGNIZED THAT ONE OF HER BEST FRIENDS, A PHYSICAL THERAPIST, WAS TREATING THE PARALYZED VICTIM.
IV. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT CALLING ROBERT PARLOW, AN ACCIDENT RECONSTRUCTION EXPERT, AS A WITNESS ON BEHALF OF [DEFENDANT].
V. TRIAL COUNSEL WAS INEFFECTIVE FOR DIRECTING [DEFENDANT] NOT TO TESTIFY AT TRIAL AND NOT PROPERLY ADVISING HIM ON THAT SUBJECT.
VI. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT CALLING CHARACTER WITNESSES ON [DEFENDANT'S] BEHALF.
VII. COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO APPLY TO HAVE [DEFENDANT'S] UNTESTED BLOOD SAMPLE TESTED BY AN INDEPENDENT LABORATORY AND FAILING TO RETAIN AN EXPERT TO REVIEW THE STATE LAB'S TESTING PROCEDURE AND TESTIFY THAT THE TEST RESULT OF [DEFENDANT'S] BAC FROM THE SAMPLE THAT WAS TESTED WAS NOT RELIABLE.
VIII. THE TRIAL COURT ERRED IN FAILING TO GRANT [DEFENDANT'S] PCR PETITION AND REVERSE HIS CONVICTIONS ON THE CONTENTIONS SET FORTH IN [POINT I]; IN ANY EVENT, AS [DEFENDANT] PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE COURT ERRED IN DENYING THE PETITION WITHOUT CONDUCTING AN EVIDENTIARY HEARING.
After close examination of defendant's arguments and the record, we conclude that the judge erred in denying relief without allowing the development of the issues at an evidentiary hearing.
II
To explain, we briefly recount the events that led to defendant's conviction.
On the morning of April 10, 2011, prior to getting behind the wheel of his vehicle, defendant consumed two "mugs" of beer at an Egg Harbor City bar before consuming an additional four to eight beers at another location. Defendant then entered his vehicle and drove south on Cologne Avenue, a two-lane rural road in Hamilton Township with a speed limit of fifty-five miles-per-hour. Approximately 100 feet ahead of defendant on Cologne Avenue was a vehicle driven by thirty-five-year-old M.G.; M.G.'s passengers were elevenyear-old M.J. and nine-year-old R.S. Defendant recalled that as his and M.G.'s vehicles approached the entrance to a fire house, he glanced over at a baseball game happening on a ballfield near the fire house. Defendant failed to notice that M.G.'s vehicle had stopped to make a left turn. Defendant's vehicle rear-ended M.G.'s vehicle and then veered off the road and into a tree. M.G.'s vehicle spun into oncoming traffic and was struck by another vehicle. M.G. was critically injured, M.J. was paralyzed from the waist down, and R.S. was killed. Defendant suffered a concussion and fractured spine.
According to one witness, defendant was neither swerving nor driving erratically prior to the crash. In approaching defendant, this witness observed that he appeared very disoriented as suggested by questions he asked ("where am I?"; "what happened?") and a statement he made ("I was just at a ball game"). Defendant told emergency responders he had consumed "a couple of beers" that morning, but neither the police nor the EMT treating defendant noticed any indicia of intoxication, such as slurred speech or an odor of alcohol. And a nurse, who treated defendant at the hospital following the crash, testified that defendant exhibited behavior consistent with someone who had suffered a serious head injury.
A police officer approached defendant while he was being treated in the hospital to collect a blood sample, allegedly telling defendant that, even if he refused consent, his blood sample would still be taken. A second officer arrived that same afternoon to collect the blood sample and asked defendant a second time for his consent, presenting defendant with a consent form. The treating nurse testified that defendant was "awake, alert and oriented" when the first officer arrived, but defendant claims that, when he signed the consent form provided by the second officer later that afternoon, he did not know what he was signing. In his sworn statement in support of his PCR petition, defendant described his pain and state of confusion - having sustained a spinal fracture at C-2, a concussion, and a three centimeter laceration of his forehead as a result of striking the windshield with his head after colliding with a tree - when he was approached by an officer seeking to have his blood drawn, and provided information that would support a claim that he did not knowingly or voluntarily consent to the blood draw:
While being treated at the hospital for my injuries, Officer Bongiovanni came and asked me to let them take my blood. He said if I refused they would forcibly do so. He left and sometime later Officer Nelson came into the room I was being held in. She had with her what she described as a blood kit. She told me that I had to sign a form so that she could get my blood. I replied I guess so or words to that effect. I had no idea that I didn't have to sign the form and give blood. Between the alcohol I had consumed and the trauma and pain from my injuries, I did not understand what was occurring and simply signed what I was told to. I did
not want them forcibly taking blood from me. I did not know that I had the ability to refuse and make the State apply for a search warrant.
Two blood samples were taken from defendant. One was tested, revealing a BAC of 0.192. The second sample was preserved and sent to a lab for storage in case of future need; it was not tested.
III
A
At trial, the State presented three expert witnesses. The first, Officer Wade Smith, was offered as an accident reconstruction expert. He testified that defendant was traveling at forty-five miles-per-hour at the time of the collision and should have been able to stop before striking M.G.'s vehicle. He also testified that, based on his analysis of the scene and tire marks, defendant made no evasive maneuvers to avoid M.G.'s vehicle. And Smith testified about Atlantic County's policy of obtaining blood samples from drivers involved in fatal crash investigations.
Dr. Robert Pandina, director of the Center of Alcohol Studies at Rutgers University, testified for the prosecution that when tested, a blood sample provides a person's BAC only at the time the blood was drawn and that, because a person's BAC continuously rises after the consumption of alcohol, it is likely that defendant's BAC was lower when the accident occurred than when the blood sample was taken. Nonetheless, he testified that defendant's BAC at the time of the accident would still have been around 0.19, well above the legal limit, and that a person with such a BAC is "60 times or more likely" to be involved in a fatal crash than a sober person.
The State's third expert witness was Dr. Edward Barbieri, a supervising physician in the laboratory that tested defendant's blood sample. He acknowledged that he did not test the sample himself and that about twenty different people may have handled the blood sample, a circumstance that made human error likely, although the laboratory takes precautions to lessen the impact of potential human error.
B
The defense offered no expert witnesses to refute the opinions of Smith, Pandina, or Barbieri. Defense counsel did not present character witnesses and defendant did not take the stand.
C
During the proceedings, it was revealed that a juror was "best friends" with the physical therapist who had been treating M.J., the child paralyzed by the crash. Defense counsel - allegedly without consulting defendant - agreed to allow the juror to remain on the panel.
IV
In light of these facts and circumstances, when examined against defendant's factual and legal assertions in his PCR petition, we conclude that the trial court should have conducted an evidentiary hearing.
When seeking post-conviction relief, a defendant is entitled to an evidentiary hearing on establishing a prima facie case effectiveness and on making a showing that there is "a reasonable likelihood" that the claim, when viewed in the light most favorable to the defendant, "will ultimately succeed on the merits." Under the applicable standard, defendant must establish a prima facie case of ineffectiveness by showing that: (1) his counsel's performance was deficient, and (2) that deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In other words, a defendant must show that "but-for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694. Under Strickland, a defendant is entitled only to "reasonably effective assistance" of counsel, as defined by "prevailing professional norms." Id. at 687-88. Tactical decisions, such as those related to trial strategy, will not be second-guessed, id. at 689, but an attorney's "inadequate investigation of the law or fact . . . dispels the presumption of competence that might otherwise arise from a strategic choice." State v. Bey, 161 N.J. 233, 251-52 (1999).
Against these standards, we consider defendant's contentions that his trial attorney failed to: (a) adequately respond to Pandina's expert testimony; (b) properly pursue the suppression of defendant's blood sample; (c) urge the removal of a juror who was close friends with one of the victim's therapists; (d) present the testimony of a reconstruction expert; (e) adequately counsel defendant about the waiver of his right to testify at trial; (f) explore or consider calling character witnesses; and (g) pursue testing of a second blood sample.
A
Defendant first argues that his trial attorney failed to oppose Pandina's expert testimony about defendant's BAC levels at the time of the accident. He argues that his attorney should have objected to Pandina's testimony because it constituted an impermissible net opinion "based merely on unfounded speculation and unquantified possibilities." Townsend v. Pierre, 221 N.J. 36, 55 (2015). Defendant also argues that his trial attorney should have retained another expert to refute or otherwise suggest to the jury a reason to doubt Pandina's testimony.
Defendant's arguments do not constitute the type of "bald assertions" that we have found are insufficient to trigger the right to an evidentiary hearing. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div. 1999). To the contrary, defendant has, in support of his PCR petition, provided a report of Dr. Bankole Johnson, a neuropsycho-pharmacologist, who criticizes Pandina's methodology because it relies on irrelevant or incomplete data. For example, Johnson asserted in his report that:
• Pandina did not make clear that the relative risk of being involved in a fatal car accident "comes from multiple databases with varying levels of reliability" and that there are "additional factors including the increased potential for error as there are fewer reliable cases on which to base the BAC level and reported accident data," thereby suggesting that "great caution should be placed on simply reading off relative risk values off a chart";
• the "60 times" opinion "is an extrapolation," based on "truncate[d] . . . data" and the "paucity of data" at this or higher BACs "for older individuals (i.e. greater or equal to 35 years)," leading Johnson to assert that Pandina's "rigid or fixed number" is a relative factor that is "misleading" when presented "without qualification of the uncertainty"; and
• because the data on which Pandina's opinion was based is "taken from those who have been in an accident," that "there is, obviously, no good comparative data of individuals with elevated
BAC levels who have not been in a fatal accident; in short, "statements of relative risk need to be qualified properly with judicious appreciation of the quality of the data being evaluated."
Notwithstanding Johnson's report, the PCR judge concluded that an evidentiary hearing was unwarranted because Pandina's testimony was not an impermissible net opinion. That may be true, but the question posed by the PCR petition is broader than that. The question here is whether defendant's trial attorney adequately responded to Pandina's testimony and opinions. Johnson's opinions, had they been presented to the jury, could very well have cast considerable doubt on Pandina's assertion that drivers with a BAC of .19 are sixty times more likely to cause fatal accidents than sober drivers, a colorful statistic that no doubt struck at the heart of the defense.
We conclude that defendant has presented a prima facie case of ineffectiveness regarding the defense's response to Pandina's testimony that warrants further exploration at an evidentiary hearing. There were ways of attacking Pandina's testimony - particular the sixty-times-more-likely opinion -beyond the argument that it constituted a net opinion, and - on this record - we see no plausible strategic decision in the trial attorney's failure to seek or call an expert to respond to Pandina's testimony. See State v. Chew, 179 N.J. 186, 217 (2004).
B
Defendant next argues that his trial attorney mishandled an opportunity to obtain suppression of defendant's blood sample. Defendant argues that his blood sample should not have been taken absent a warrant, as he could not give proper consent due to his head injury and intoxication. Defendant contends that his attorney withdrew an initial motion to suppress only to refile it one week before jury selection, without calling defendant or any witnesses to testify in favor of the motion, and without placing a proper emphasis on the police's violation of his Fourth Amendment right against warrantless seizure. See State v. Adkins, 221 N.J. 300, 310-12 (2015) (explaining there is no per se rule allowing for the warrantless seizure of blood from suspected drunk drivers).
The trial court acknowledged the holdings in Adkins and Missouri v. McNeely, 569 U.S. 141 (2013) that the warrantless seizure of blood based on alcohol dissipation requires a showing of exigency based on the totality of the circumstances. Despite this, the judge held that, even assuming the trial attorney's handling of this issue was deficient, defendant consented to having his blood drawn and the suppression motion would have been denied regardless.
We considered, in ruling on defendant's direct appeal, the trial judge's decision not to suppress the warrantless seizure of the blood sample. Our decision was rendered not long after our Supreme Court gave McNeely pipeline retroactivity. Adkins, 221 N.J. at 303. We therefore held that seizure of the blood sample was appropriate since defendant gave consent, Liepe, 453 N.J.Super. at 132, but we did not decide - because it was not before us - whether there was a factual basis for attacking whether defendant gave knowing or voluntary consent.
In considering these contentions in light of the record before us, it is not at all clear or certain that defendant's trial attorney acted within the degree of effectiveness required by the Strickland standard. There is no explanation for why the attorney withdrew the first motion to suppress and then reasserted the claim at the last minute, before refiling the motion shortly before trial. In addition, there is suggested no reason, when ultimately moving for suppression, for trial counsel not to call defendant to testify at that hearing, or in not calling other witnesses, to enlighten the fact finder as to defendant's ability to knowingly and voluntarily waive his right to withhold his consent. Given defendant's level of intoxication, as alleged by the prosecution, and his concussion, defendant had a substantial factual argument to pursue in seeking the suppression of evidence about his blood alcohol content. We are satisfied that this is another area that would benefit from an evidentiary hearing because the record fails to reveal a tactical reason for the defense not to more fulsomely pursue suppression.
Not to be overlooked is the Johnson report, which was submitted in support of the PCR petition, wherein Johnson asserted, "to a reasonable degree of medical certainty, that [defendant] did not provide consent to have his blood drawn for a BAC level."
C
We next turn to defense counsel's failure to pursue a dismissal of a juror. The existing record reveals that a victim's physical therapist was one of the juror's bridesmaids and, during the trial, the juror and the witness attended a birthday party together. Certainly, there were reasons for the defense to be concerned about the juror's relationship to the therapist, a circumstance that might have evoked for the juror sympathy for the severely injured victim. It would also seem obvious that had the defense objected to the juror remaining on the panel the judge would have excused the juror.
We recognize that, in ruling on defendant's direct appeal, we found the juror's continued presence on the jury did not constitute a ground for reversal, but our decision was based on the trial attorney's consent to the juror's continued participation. Liepe, 453 N.J.Super. at 132. We did not decide whether there would have been grounds for reversal had the defense objected, and if the objection was overruled and the juror allowed to remain on the jury which later convicted defendant. See State v. Cooper, 151 N.J. 326, 349 (1997); In re Koslov, 79 N.J. 232, 239 (1979). The question at this stage is whether there was a sound tactical reason for defendant's trial attorney not to seek the juror's removal. To be sure, there may have been something about this juror that the defense may have believed to have been helpful to their position, but we cannot assume there was a tactical reason for the approach taken on this record. Without an evidentiary hearing at which that issue might be explored, we cannot say defendant was not prejudiced by this juror remaining on the jury.
D
Defendant next argues that his trial attorney was ineffective for failing to present a reconstruction expert. The record reveals that the trial attorney had retained Robert Parlow, an accident reconstruction expert, but chose not to call him at the time of trial. Parlow's report made numerous observations that, according to defendant, would have weakened the case against him. Most notably, Parlow opined that the turn signal on M.G.'s vehicle was in the neutral position at the time of the crash, thereby supporting an argument that M.G.'s turn signal may not have been activated at the time of the crash, suggesting some fault on M.G.'s part in stopping to make a left turn without signaling. This, plus defendant's claim that he was distracted by a nearby baseball game, led Parlow to the conclusion that the crash was merely the result of a "moment of [in]attentiveness" on defendant's part.
The record also suggests that defense counsel, after receiving the State's motion to exclude Parlow's testimony, announced he would not be calling Parlow to the stand. The record does not reveal why the attorney took that position.
In denying relief, the PCR judge held that Parlow's report constituted an impermissible net opinion prohibited by State v. Townsend, 186 N.J. 473, 494 (2006), and, even assuming the report would be admissible, it would not have been helpful in disproving the State's case considering defendant's high BAC at the time of the accident.
First, the fact that Parlow was not a witness to the accident does not transform his opinion into a net opinion. The same could be said for the State's expert, but he was allowed to testify, and properly so. Parlow's report reveals that he examined the information available and gave the "why and wherefore" of how he drew his conclusions. See Townsend v. Pierre, 221 N.J. at 54. And his opinion that the turn signal on M.G.'s vehicle was in the neutral position at the time may have assisted the jury in determining whether defendant was wholly at fault for the crash or whether his state of mind was something less than required by law to support the convictions. See State v. Summers, 176 N.J. 306, 312 (2003); State v. Odom, 116 N.J. 65, 71 (1989); State v. Kelly, 97 N.J. 178, 208 (1984).
Perhaps the overall circumstances would suggest a tactical reason for not casting fault on one of the victims but, at the moment, the tactical reason applied by defendant's trial attorney has not been offered. This is a matter that ought to be developed at an evidentiary hearing.
E
Defendant next argues that he wanted to testify on his own behalf but his trial attorney forbade him. Criminal defendants, of course, have a constitutional right to testify, and the decision to testify rests with them alone. State v. Savage, 120 N.J. 594, 626-28 (1990); N.J.S.A. 2A:81-8. And an attorney is constitutionally ineffective when failing to adequately advise the accused of the ramifications of both testifying and remaining silent. Id. at 630-31.
The PCR judge held that, because defendant stated in during the colloquy in open court about his decision not to testify, that he knew he had the right to testify, had consulted with his attorney, and had made his own choice not to testify, that he cannot presently argue that his attorney was ineffective. That is only partly true. While these statements in open court would preclude an argument that defendant did not know he had a right to testify, they do not preclude his argument that he was not adequately advised of the consequences of not testifying because what transpired between defendant and his attorney up until that point is not disclosed in the record. Perhaps it was a strategic choice, and perhaps it was a sound choice, but on the allegations before us - without further development at an evidentiary hearing - we do not know what information defendant was given in making that choice.
Taking into consideration defendant's sworn statement in support of his PCR petition that his attorney never spoke to him "about the pros and cons" of testifying even though he told his attorney "numerous times" that he "wanted to testify and . . . tell the jury what happened," and that his attorney simply told him that he "could not testify," and viewing those assertions and all the facts in the light most favorable to defendant, as this court is required to do, R. 3:22-10(b), there has been presented a prima facie case that defendant's choice not to testify was made without a full and adequate understanding of how that decision impacted the defense.
F
We next consider whether defendant's trial attorney was ineffective for failing to call character witnesses to testify on defendant's behalf. Defendant claims that he had requested character witnesses to testify for him, but that trial counsel refused this request without explanation. The PCR record contains statements from four individuals acquainted with defendant who were willing to testify about his character had they been asked.
The PCR judge held that the lack of character witnesses was unlikely to have prejudiced defendant, as none of the proposed witnesses had any direct knowledge of the crash or the events leading up to it. Based on this view of character testimony, the judge concluded that "even if the witnesses testified at trial, it is unlikely the result of the trial would be different." The judge's opinion, however, misconceives the purpose of character testimony. Character witnesses are presented to "offer evidence of [a defendant's] good character to show [he or she] was unlikely to have committed the crimes charged." State v. Abril, 444 N.J.Super. 553, 560 (App. Div. 2016). Had these witnesses been called, the judge would have been required to tell the jurors, as Model Jury Charge- Criminal § 4.120 Testimony of Character Witnesses states, that they "should consider all of the relevant testimony, including that related to defendant's good character or reputation, and if, on such consideration, there exists a reasonable doubt of his/her guilt, even though that doubt may arise merely from his/her previous good repute, he/she is entitled to an acquittal."
When he was a member of this court, Chief Justice Hughes recognized that evidence of a defendant's good character and reputation may be considered by a jury "in connection with all the other evidence in the case," and "may, like other facts, generate a reasonable doubt." State v. Micci, 46 N.J.Super. 454, 460 (App. Div. 1957); see also State v. Reyes, 50 N.J. 454 (1967). In other words, testimony from character witnesses is not simply "a sheer makeweight thrown into the balance to arouse sympathy," but it is instead, when presented to a jury, "essential" that the jury be advised that such testimony may serve as a basis on which to find reasonable doubt. Micci, 46 N.J.Super. 459-60.
We do not know from this record alone whether there was some tactical reason why defendant's trial attorney did not present character witnesses. But it is enough - to obtain an evidentiary hearing on that question - that defendant has presented sufficient information from which it may be assumed, when viewed in the light most favorable to him, that character witnesses were available; that assumption, when viewed together with the legal impact of such testimony, presents a prima facie case of ineffectiveness that ought to be explored at an evidentiary hearing.
G
We lastly turn to whether defendant's trial attorney was ineffective for failing to have the second blood sample tested. Edward Bardieri, the supervisor at the laboratory that tested defendant's first blood sample, admitted human error was possible when testing the sample, and trial counsel, during cross-examination of Pandina, raised the spectre that the BAC level found in this initial blood sample was inaccurate. Considering this approach, the apparent lack of effort by defendant's trial attorney to have the second blood sample analyzed seems inexplicable. The PCR judge, in denying defendant an evidentiary hearing on this issue, held that "defendants are prohibited from making bald assertions about what the evidence could have, or might have, revealed had defense counsel pursued particular lines of investigation." What we said about "bald assertions" in Cummings, 321 N.J.Super. at 170, remains true, but considering Bardieri's testimony about the possibility of error and the strategy of questioning the results because of that possibility would seem to provide support for defendant's questioning whether his attorney was ineffective for not taking some other course regarding the second sample.
To be sure, there may have been a tactical reason for the road taken. The trial attorney - particularly because of other testimony about defendant's consumption of alcohol that day - may have been of the belief that it was better to cast aspersions at the testing that was done than to obtain additional testing that might have confirmed the first results and diminished or eliminated those aspersions. But to assume that this is what the trial attorney intended would be mere speculation. Moreover, since there must be a hearing on other issues, we find it propitious to allow development of this issue as well.
V
For these reasons, we are satisfied that defendant presented a prima facie case of ineffectiveness that ought to be explored at an evidentiary hearing. We, thus, vacate the order denying post-conviction relief and remand for an evidentiary hearing.
Vacated and remanded. We do not retain jurisdiction.