Opinion
DOCKET NO. A-1703-11T4
02-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. P.L.M., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1298.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant P.L.M. appeals from an order, entered April 16, 2011, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He argues that he was denied effective assistance of counsel because his trial attorney failed to request a hearing under State v. Michaels, 136 N.J. 299 (1994), challenging the admissibility of out-of-court statements and testimony of three child sex assault victims. Defendant also claims that counsel on direct appeal was ineffective by neglecting to raise as error the trial court's decision not to disclose to the defense certain Division of Youth and Family Services (DYFS) records, which defendant asserts constituted Brady materials. We affirm for the reasons set forth below.
I.
We need not recite the facts at length, and rely instead on our opinion from the direct appeal. See State v. P.L.M., No. A-2368-05 (App. Div. June 18, 2007)(slip op. at 2-7). Following a jury trial, defendant was convicted of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and one count of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 14-2(b). These charges stemmed from sexual assaults on three girls under the age of thirteen. Prior to trial, defendant moved to introduce evidence that one of the child victims, A.M., had told Linda Jane Shaw, M.D. about the existence of prior sexual partners and requested that that history be kept from her grandmother. The judge denied defendant's motion to pierce the protection of the Rape Shield Law, N.J.S.A. 2C:14-7.
After trial, defendant's motion for a new trial was denied. At sentencing, the judge merged the lesser offenses with the first-degree aggravated sexual assault convictions, and imposed consecutive sixteen-year terms on each of the three counts including a parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed in part, rejecting four of defendant's six challenges. See P.L.M., supra, slip op. at 9-39. With respect to the exclusion of A.M.'s alleged prior sexual history under the Rape Shield Law, we found the existing record insufficient for appellate review. Id. at 16-17. Accordingly, we remanded the issue to the trial court for an in-camera hearing on the admissibility of A.M.'s history and its impact on the convictions stemming from the abuse of A.M. Id. at 17-18, 39. We also remanded for a resentencing hearing pursuant to State v. Natale, 184 N.J. 458 (2005). Id. at 18, 38, 39. However, the convictions arising from the abuse of the two other girls were affirmed. Id. at 39.
Following a remand hearing, the trial judge found insufficient evidence of any prior sexual history to warrant piercing the Rape Shield Law and denied a new trial. The judge again imposed consecutive sixteen-year terms on each of the three counts including a parole disqualifier pursuant to NERA.
Defendant then filed a new appeal challenging the exclusion of A.M.'s prior sexual experience. He also contended that his sentence was excessive. We disagreed on both points, and affirmed. See State v. P.L.M., No. A-2368-05 (App. Div., Apr. 17, 2009)(slip op. at 8), certif. denied, 204 N.J. 41 (2010).
II.
On appeal from the denial of his PCR petition, defendant raises the following issues for our consideration:
POINT ONE
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT CHALLENGE THE DYFS SUPERVISOR'S INTERVIEWING PRACTICES.
POINT TWO
THE DEFENDANT'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT RAISE ON THE DEFENDANT'S DIRECT APPEAL THE ARGUMENT THAT THE TRIAL COURT ERRED IN FAILING TO DISCLOSE TO THE DEFENDANT THE DYFS RECORDS RELATING TO ITS PAST AND PRESENT INVESTIGATIONS OF THE FAMILY.
POINT THREE
AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.
Upon review of the record, we disagree with defendant's assertions and affirm. The PCR judge applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel. Under that test, a petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) that counsel's performance created 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, 688, 689, 694, 104 S. Ct. 2052, 2064, 2065, 2068, 80 L. Ed. 2d 674, 693, 694, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the federal Strickland test as the constitutional standard in New Jersey). Further, when petitioning for PCR, a defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To satisfy that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
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, 4 63 U.S. 745, 751, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 994 (1983); Gaither, supra, 396 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.
The PCR judge first concluded that defense counsel was not ineffective by failing to request a Michaels hearing because counsel had already argued unsuccessfully that the children's statements were inadmissible as untrustworthy under N.J.R.E. 803(c)(27). The PCR judge also determined that defendant failed to make a prima facie showing that the outcome of the trial would have been different if counsel had requested a Michaels hearing. The record before the PCR judge disclosed that the trial judge compared the trustworthiness factors under N.J.R.E. 803(c)(27) for determining the admissibility of a child-victim's statement with the factors considered under Michaels in determining whether to exclude a child-victim's statement and testimony as not sufficiently reliable. See State v. Delgado, 327 N.J. Super. 137, 147 (App. Div. 2000); Michaels, supra, 136 N.J. at 318.
Citing the trial judge's findings from the pretrial N.J.R.E. 803(c)(27) hearing, the PCR judge concluded that, under the totality of the circumstances, the trial judge would not have excluded the children's prior statements and testimony under Michaels:
As there was a pretrial 104 hearing where defense counsel was able to thoroughly investigate the preliminary interviewer Dorsey Ash, there is no reason to believe that the defense counsel was deficient in his advocacy for his client. To the contrary, defense counsel asked directed questions regarding how the interview was conducted, including questions related to the duration of the interview, had defendant's name been mentioned, did the interviewer delve into specifics of each case.
We concur with the PCR judge's analysis and conclusions, agree that defense counsel was not ineffective, and determine that a different outcome at trial would not have resulted. We add only the following comments.
The Court in Michaels, concerned about "untoward suggestiveness" tainting investigatory interviews and interrogations of child victims, established a framework to ensure "the reliability of the resultant evidence." Id. at 320. A defendant bears the threshold burden "to trigger a pretrial taint hearing" — now known as a Michaels hearing — by showing "'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." Ibid. The proffered evidence must be sufficient "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. Only then will the burden shift to the State to prove, by clear and convincing evidence, that "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." Ibid.
The alleged child victims in Michaels faced an array of improper practices, including "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." Ibid. However, the Court explained that in cases where the judge determines that a child's statements or testimony "do retain sufficient reliability," it is left to the jury to consider the probative value and weight of the statements in assessing the child-witness's credibility. Id. at 323. The Court specifically emphasized that "child victims are to be presumed no more or less reliable than any other class of witnesses." Id. at 320.
The test for determining the admissibility of out-of-court statements by juvenile sex-assault victims under N.J.R.E. 803(c)(27) overlaps with the Michaels standard. Courts should consider five, nonexclusive factors in evaluating the trustworthiness of such statements under N.J.R.E. 803(c)(27): "(1) the circumstances under which the same statement was made . . . ; (2) its spontaneity; (3) the mental state of the declarant; (4) the terminology attributed to the declarant; and (5) the declarant's lack of motive to fabricate." Delgado, supra, 32 7 N.J. Super. at 147 (internal quotation marks omitted). A court's analysis under N.J.R.E. 803(c)(27) may be informed by Michaels principles and the related social science regarding the suggestibility of child victims. See, e.g., State v. P.S., 202 N.J. 232, 253-54 (2010)(applying Michaels principles in declining to require tape recording as a precondition to admissibility under N.J.R.E. 803(c)(27)); State v. D.G., 157 N.J. 112, 130-34 (1999)(applying Michaels principles in determining that a videotaped statement was not sufficiently reliable to be admitted under N.J.R.E. 803(c)(27)).
Here, defendant argues that trial counsel was ineffective by not filing a Michaels motion "to ascertain the interviewing practices used by [DYFS worker] Ash, the training she undertook to conduct the initial interviews [of the three victims] and the protocols she followed." The PCR judge noted that, during the initial Rule 104(a) hearing with regard to Ash's testimony, "the examination of the witness offered the trial judge information regarding Ms. Ash, her qualifications, how she conducts interviews, and particular facts regarding the initial interview of the three victims conducted on July 8, 2003."
Defendant speculatively asserts that Ash suggested or molded the victims' responses during their pretrial interviews by employing inappropriate techniques; accordingly, trial counsel's failure to pursue a Michaels hearing rendered his performance ineffective. However, we find nothing in the hearing or trial record to support defendant's claim. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)(bald assertions will not suffice to establish a defendant's prima facie claim of ineffective assistance of counsel).
There is no reason to conclude that had the trial judge conducted a Michaels hearing, defendant would have elicited significant proofs regarding suggestiveness other than those already elicited in the Rule 104(a) hearing and the trial. See D.G., supra, 157 N.J. at 130 (finding that confrontation of child witness at trial may be considered in determining whether admission of evidence under tender years exception was prejudicial). For example, there is no compelling evidence that the girls coordinated their stories. Thus, there was adequate support for the PCR judge's conclusion that a Michaels hearing would not have led to exclusion of the children's out-of-court statements and testimony.
Defendant also contends that appellate counsel was ineffective by not raising as error on direct appeal the trial judge's decision denying disclosure of the victims' DYFS records. The trial judge conducted an in-camera review of the "six inch" DYFS file and concluded that there was no relevant information which the parties did not already have in their possession. Had appellate counsel appealed that issue, we would have reviewed the denial under an abuse of discretion standard. See State v. Williams, 239 N.J. Super. 620, 626 (App. Div. 1990).
DYFS records are confidential pursuant to N.J.S.A. 9:6-8.10a(a), in order "to encourage the reporting of child abuse and to facilitate the ability of witnesses and case workers to testify." N.J. Div. of Youth & Family Servs. v. T.H., 386 N.J. Super. 271, 276 (Ch. Div. 2006). Their confidentiality, however, is not absolute. See ibid.; N.J.S.A. 9:6-8.10a.
We note that both the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." The right to question adverse witnesses, however, "does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct. 989, 999, 94 L. Ed. 2d 40, 54 (1987)(plurality opinion); State v. Krivacska, 341 N.J. Super. 1, 35 (App. Div.) ("The Confrontation Clause is not a constitutionally compelled right to discovery in a criminal case."), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002); State v. Cusick, 219 N.J. Super. 452, 463 (App. Div.)(finding that trial court properly refused to permit defendant access to victim's records maintained by Division of Youth and Family Services and Arthur Brisbane Child Treatment Center because "information was not determinative of any issues before the court or necessary for the conduct of the proceedings"), certif. denied, 109 N.J. 54 (1987).
In this case, defendant has failed to articulate any legitimate basis for obtaining the entirety of the DYFS files. See State v. R.W., 104 N.J. 14, 28 (1986)("[A]llowing a defendant to forage for evidence without a reasonable basis is not an ingredient of either due process or fundamental fairness in the administration of the criminal laws."). Besides the fact that PCR counsel was clearly unable to articulate the relevance of the evidence or a particularized need for the records, he also did not demonstrate the records would contain relevant information. Thus, the court did not err in denying defendant's PCR based on appellate counsel's failure to raise this issue on appeal.
Nor was defendant entitled to an evidentiary hearing on his petition. The trial court conducted a pretrial hearing on the admissibility of the children's out-of-court statements, albeit under N.J.R.E. 803(c)(27), rather than Michaels. The issue before us is whether the PCR judge, on the petition for PCR, should have held an evidentiary hearing to determine whether (1) it was ineffective not to request a Michaels hearing, and (2) had a Michaels hearing specifically been conducted, the result in the case would have been different. Further, defendant contends that the PCR judge should have reviewed the DYFS file. The PCR judge concluded that an evidentiary hearing was not required.
We discern no error in that conclusion. A hearing is unnecessary where it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or [where] the defendant's allegations are too vague, conclusory or speculative to warrant an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); see also State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)(stating that trial court has discretion to evaluate an issue as "lacking adequate factual or legal merit" to warrant a hearing), certif. denied, 158 N.J. 72 (1999). "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. Similarly, when a defendant claims that a pretrial taint hearing should have been conducted, he must make a reasonable showing as to what the pretrial taint hearing would have revealed.
Applying those standards, the PCR judge correctly denied defendant's request for an evidentiary hearing on his PCR petition. It was incumbent upon defendant to indicate what the evidentiary hearing on the PCR petition would have revealed that was not already a part of the record as a result of the pretrial hearing and the trial testimony. Having failed to do so, the PCR judge reasonably concluded that an evidentiary hearing was unnecessary.
Based on the record before him, the PCR judge correctly decided that the result of the proceedings would not have been different had trial counsel requested a Michaels hearing or had appellate counsel appealed the discovery ruling on the DYFS file. In sum, we concur in the PCR judge's determination, without an evidentiary hearing, that defendant was not denied effective assistance of trial or appellate counsel.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).