NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0544-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM T. LIEPE,
Defendant-Appellant. ________________________
Argued March 11, 2025 – Decided July 22, 2025
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2766.
Gilbert G. Miller argued the cause for appellant (Wronko & Loewen, attorneys; Gilbert G. Miller, of counsel and on the brief).
Marisa D. Pescatore, Assistant Prosecutor, argued the cause for respondent (William E. Reynolds, Atlantic County Prosecutor, attorney; Marisa D. Pescatore, of counsel and on the brief).
PER CURIAM This tragic case returns to us following defendant William T. Liepe's
appeal of the denial of his post-conviction petition (PCR) after an evidentiary
hearing.
Defendant was convicted of first-degree aggravated manslaughter,
second-degree vehicular homicide, two counts of second-degree aggravated
assault, two counts of third-degree assault by auto, and one count of fourth-
degree assault by auto. His conviction arises from a car accident on the morning
of April 10, 2011 when defendant rear-ended a car, causing the death of a child,
permanent paralysis of another child, and serious injuries to the driver of the
car. The collision also injured a passenger in a car that was traveling in the
opposite lane. Before the accident, defendant drank two "mugs" of beer at a bar
before going to another establishment to drink an additional four to eight beers.
On direct appeal, we affirmed defendant's convictions but remanded for
resentencing, holding his aggregate thirty-two-year prison sentence was
shocking to our judicial conscience. State v. Liepe, 453 N.J. Super. 126, 129
(App. Div. 2018) (Liepe I). The Supreme Court reversed and reinstated
defendant's sentence. State v. Liepe, 239 N.J. 359, 363 (2019).
Defendant subsequently filed a PCR petition, raising numerous
allegations of ineffective assistance of counsel. The PCR court denied relief
A-0544-23 2 without an evidentiary hearing. We reversed, ruling the court "erred in denying
relief without allowing the development of the issues at an evidentiary hearing."
State v. Liepe, No. A-2228-20 (App. Div. Mar. 8, 2023) (slip op. at 5) (Liepe
II).
On remand, the PCR court conducted an evidentiary hearing and denied
defendant relief. The court determined the evidence "shows that trial counsel
made appropriate strategic decisions, properly investigated the case and
properly carried out his duties and obligations at all stages of the case." The
court "found counsel to be experienced, competent, truthful and credible." In
contrast, the court held defendant was "confused and uncertain;" his testimony
"did not appear to be forthright;" and "[h]is statements were not supported by
the record."
Before us, defendant argues:
POINT I
THE STATE FAILED TO REBUT MULTIPLE INSTANCES OF INEFFECTIVE ASSISTANCE OF COUNSEL IN THE EVIDENTIARY HEARING.
A. [Defendant's] trial counsel was constitutionally deficient in opposing Dr. Pandina's conclusion that drivers with a [.192] BAC are 60 times more likely to be involved in a fatal automobile accident than a person with a 0.00 BAC.
A-0544-23 3 B. [Defendant's] trial counsel was constitutionally deficient in litigating [defendant's] motion to suppress BAC evidence resulting from the warrantless seizure of his blood samples.
C. Trial counsel was unconstitutionally ineffective for failing to move to dismiss a juror when the juror recognized that one of her best friends was treating the paralyzed victim and failing to request the court to question the juror upon her return from a party where her friend was scheduled to be present regarding any improper exposure to information or influence.
D. Counsel was unconstitutionally ineffective for not calling character witnesses on [defendant's] behalf.
E. Counsel was unconstitutionally ineffective for directing [defendant] not to testify at trial and not properly advising him on that subject.
Based upon our review of the record, the parties' arguments, and
applicable law, we conclude defendant's arguments lack merit and the PCR court
correctly denied defendant relief following an evidentiary hearing.
I
When a defendant seeks post-conviction relief based on ineffective
assistance of counsel, an evidentiary hearing is conducted where "a defendant
has presented a prima facie claim in support of post-conviction relief" based on
"view[ing] the facts in the light most favorable to a defendant." State v.
Preciose, 129 N.J. 451, 462-63 (1992). A prima facie case of ineffectiveness is
A-0544-23 4 established by showing that: (1) 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) (citation
omitted). "[A]t a PCR [evidentiary] hearing, the burden is on the [defendant] to
establish his right to 'relief by a preponderance of the credible evidence.'" State
v. Nash, 212 N.J. 518, 541 (2013) (quoting Preciose, 129 N.J. at 459).
Where the PCR court conducts an evidentiary hearing, we must uphold
the court's factual findings, "so long as those findings are supported by sufficient
credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013)
(quoting State v. Robinson, 200 N.J. 1, 15 (2009)). We are "substantially
influenced by [the court's] opportunity to hear and see the witnesses and to have
A-0544-23 5 the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting
Robinson, 200 N.J. at 15).
In considering defendant's contentions based on these principles, we do
not repeat the full procedural history and trial testimony detailed at length in our
opinions on defendant's direct appeal and PCR remand. See Liepe I and Liepe
II. Instead, we discuss only what is relevant to the issues on appeal. We address
defendant's arguments in the order presented.
II
Challenge to The State's Expert's Testimony
Defendant argues the PCR court erred in not finding that trial counsel was
ineffective in opposing the testimony of the State's expert, Dr. Robert Pandina,
Director of the Center of Alcohol Studies at Rutgers University. Dr. Pandina
testified defendant's blood alcohol content (BAC) at the time of the accident
would have been approximately .192––significantly higher than the .08
threshold under N.J.S.A. 39:4-50(a) for driving while intoxicated––and a person
with that BAC is "60 times or more likely" to be involved in a fatal car crash
than a person with a BAC of 0.0. Dr. Pandina was cross-examined as follows:
[Trial Counsel:] I reviewed a report from the National Highway Transportation Safety Board that indicated that in 2010, specifically for New Jersey, out of a total of 556 fatalities for a .15 [BAC] or higher, it was only
A-0544-23 6 18 percent of the cases, and yet you're saying that [there is a] 60 percent chance more that somebody is going to be involved in an accident?
[Dr. Pandina:] Not 60 percent more, 60-fold greater risk, not a percentage, sir.
The defense offered no expert witnesses to refute Dr. Pandina's testimony
opinion. However, in support of his PCR, defendant certified he recommended
to trial counsel that he contact an Atlantic County jail doctor who was willing
to refute Dr. Pandina's conclusion that a person with a .192 BAC was "60 times
more likely" to be involved in a fatal crash. Defendant asserted counsel "never
called [the doctor] to discuss the case[,] [] did not use him at trial," nor did
counsel ever confer with him about hiring an expert to challenge Dr. Pandina's
opinions.
To support his claim that an expert would have aided his trial defense,
defendant's PCR petition included a report from Dr. Bankole Johnson, a
neuropsychopharmacologist, criticizing Dr. Pandina's methodology. Dr.
Johnson opined Dr. Pandina did not clarify that the relative risk of being
involved in a fatal car accident "comes from multiple databases with varying
levels of reliability" and 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." Dr. Johnson maintained that "great caution
A-0544-23 7 should be placed on simply reading off relative risk values off a chart." He also
opined Dr. Pandina's 60-times-more-likely opinion is "an extrapolation" based
on "truncate[d] . . . data," and that there is a "paucity of data at . . . higher BAC
levels for older individuals (i.e. greater or equal to 35 years)."1 Dr. Johnson
concluded Dr. Pandina's "rigid or fixed number" is a relative factor that is
"misleading" when presented "without qualification of the uncertainty."
Moreover, because the data on which Dr. Pandina relied was taken from "those
who have been in an accident," there is "no good comparative data of individuals
with elevated BAC levels who have not been in a fatal accident." Therefore, the
evidence presented by Dr. Pandina "was on relative risk not absolute risk," and
"statements of relative risk need to be qualified properly with judicious
appreciation of the quality of the data being evaluated."
In response to defendant's contention regarding the lack of an expert at
trial to refute Dr. Pandina's opinions, trial counsel testified at the evidentiary
hearing that he hired John Brick, Ph.D. to opine on the impact of defendant's
BAC. However, he decided not to call him as a witness because it "wouldn't
have been beneficial testimony to [defendant]," as Dr. Brick's conclusion "was
very similar to that of [Dr. Pandina's] with regard to the [.192 BAC] and the
1 Defendant was fifty-eight years old at the time of the accident. A-0544-23 8 effect that would have on a person operating a motor vehicle." In fact, given
Dr. Brick's opinion that a person with a .192 BAC had a "99 percent" more
chance than a sober person to cause a fatal accident resulting in an aggravated
manslaughter conviction, trial counsel said using "Dr. Brick would have been
malpractice." Yet, trial counsel testified Dr. Pandina's 60-times-more-likely
opinion "was objectionable," and "I should have objected . . . and had it
stricken."
Trial counsel testified he hired a second expert, "Dr. Safirstein,"2 who did
not author a report because "there was nothing beneficial" to the defense
regarding defendant's BAC. Trial counsel also emphasized that defendant did
not have "unlimited funds" to retain an expert; thus, counsel had to be prudent
in hiring an expert. Trial counsel stated the BAC "was what it was," and that
"wasn't going to be changed." Thus, by presenting the testimony of the driver
right behind defendant's car that defendant was driving properly, trial counsel's
strategy was to show that defendant's high BAC did not cause the accident.
The PCR court determined trial counsel made a "plausible strategic
decision" not to refute Dr. Pandina's testimony regarding defendant's .192 BAC
level by instead focusing on eye-witness testimony by the driver behind
2 Dr. Safirstein's first name and qualifications are not mentioned in the record. A-0544-23 9 defendant's car that defendant's driving was not indicative of impaired driving
prior to the accident. The court pointed out that trial counsel "hired not one, but
two rebuttal expert witnesses" and "sought to attack Dr. Pandina in a different
way" after his experts gave "unhelpful opinion[s]." The court stressed that "trial
counsel vigorously cross-examined Dr. Pandina's testimony" regarding the
sixty-times-more-likely opinion and, even if it was objected to, it is "uncertain
as to whether that objection would have been sustained and [the] testimony
stricken," or "that there would have been a different result given the State's
evidence." The court found it insignificant "that . . . defendant was able to find
an expert several years later, to disagree with Dr. Pandina's methodology and
findings" because it does not mean trial counsel was ineffective, and "there is
no reasonable probability that the outcome of the trial was affected."
Defendant argues the PCR court erred because:
First, counsel failed to consult with and retain an expert who could refute Dr. Pandina's conclusion. Second, counsel failed to demand a [N.J.R.E.] 104(a) hearing to determine the conclusion's admissibility and then failed to object to its admission. Third, counsel failed to impeach the conclusion by effectively cross-examining Dr. Pandina and presenting contrary expert opinion. Fourth, counsel's summation remarks failed to effectively counter the prejudice inhering in the conclusion by accepting its validity and relevance, permitting the jury to be led by the prosecutor to a directed guilty verdict on aggravated manslaughter.
A-0544-23 10 Fifth, counsel failed to request jury instructions which would have preclude[d] such a directed verdict.
As to being prejudiced by counsel's ineffectiveness, defendant argues the
aggravated manslaughter charge "required a guilty verdict if the State proved
that criminally reckless operation of [defendant's] vehicle 'elevated the risk
level' of death 'from a mere possibility to a probability,' i.e., a risk of death
greater than [fifty percent]." State v. Curtis, 195 N.J. Super. 354, 364 (App.
Div. 1984). Prejudice was compounded by the prosecutor citing Dr. Pandina's
sixty-times-more-likely opinion "as the sole basis for a finding that [defendant's]
driving constituted aggravated manslaughter," because "there was a substantial
danger that the jury would conflate Dr. Pandina's pronouncement that the fatality
risk for .192 BAC drivers was sixty times that of 0.00 [BAC] drivers to find that
there was a probability (i.e., more than [fifty percent] likelihood) of death
occurring in this case." Defendant argues the sixty-fold increase opinion was
"excludable" under N.J.R.E. 401 and 402 as irrelevant and under N.J.R.E. 403
for being unduly prejudicial. Defendant argues there was potential for jury
confusion and, critically, the opinion "had no relevance and probative value . . .
without the admission of additional evidence of the actual risk of death posed
by motorists with a 0.00 BAC." Moreover, Dr. Pandina's conclusion did not
A-0544-23 11 account for specific conditions found here, such as the straight, rural road, and
the dry, sunny day.
We conclude the PCR court's ruling should be upheld. As we recognized
in our remand decision, Dr. Pandina's sixty-times-more-likely opinion was a
"colorful statistic that no doubt struck at the heart of the defense." Liepe II, slip
op. at 13. The question is whether trial counsel was ineffective in not moving
to strike that opinion or not more effectively attacking the doctor's credibility,
which thereby kept the jury from reaching a different outcome. Trial counsel
conceded that the opinion was objectionable, which he should have moved to
strike. And we acknowledge that when counsel challenged this opinion during
cross-examination, he mistakenly referred to it as a "60 percent chance," and did
not press Dr. Pandina to provide a specific quantification of the risk posed by
0.0 BAC drivers nor did he raise defendant's age. Nevertheless, we do not
conclude there is a reasonable likelihood that the jury would have found
defendant not guilty of aggravated manslaughter had trial counsel done what
defendant claims he should have.
To convict defendant of aggravated manslaughter, the State had to prove
he "recklessly cause[d] death under circumstances manifesting extreme
indifference to human life." N.J.S.A. 2C:11-4(a)(1). Aggravation occurs when
A-0544-23 12 defendant's conduct "manifesting extreme indifference to human life elevates
the risk level from a mere possibility to a probability." Curtis, 195 N.J. Super.
at 364 (internal quotation omitted). The State did not have to prove that the risk
of death to the accident victims was more likely than not as defendant contends.
Considering defendant's high BAC and evidence indicating he consumed many
beers the morning of the accident, he has not established that there is a
reasonable probability the result would have been different had trial counsel
more competently attacked Dr. Pandina's sixty-times-more-likely opinion.
III
Motion To Suppress Blood Draw
While defendant was being treated in the hospital following the accident,
a police officer asked him to consent to give a blood sample. Defendant was
allegedly told that, if he refused consent, his blood sample would still be taken.
Defendant was "awake, alert and oriented" at the time. Later, another officer
again asked defendant for his approval, resulting in defendant signing a consent
form. Defendant claims when he signed the consent form, he was unaware what
he was signing. As noted, defendant's blood sample revealed a .192 BAC.
Trial counsel filed a motion to suppress the BAC reading on the basis that
defendant was not capable of knowingly and voluntarily giving consent to the
A-0544-23 13 blood draw due to his accident injuries. The motion was withdrawn but refiled
before jury selection and decided without the testimony of defendant or any
supporting witnesses. We determined an evidentiary hearing was needed to
explain why the first motion to suppress was withdrawn and refiled "shortly
before trial." We held the hearing should also address why "trial counsel [did]
not to call defendant to testify at [the] hearing [that was held], 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." Liepe II,
slip op. at 15. In addition, we concluded a hearing should address whether
counsel had a "tactical reason" why he did not "more fulsomely pursue
suppression" considering "defendant had a substantial factual argument" that his
consent was not knowing or voluntary given his "level of intoxication . . . and
his concussion." Id. at 15-16.
At the evidentiary hearing, trial counsel recalled that he filed and
withdrew a motion to suppress defendant's BAC at some point, and the "law was
changing with regard" to that issue at the time. He also recalled the motion was
refiled but later denied due to both "exigent circumstances and consent." With
regard to defendant's consent, counsel testified he had defendant's medical
records and was aware defendant suffered a concussion, and that consent
A-0544-23 14 "probably should have been an issue that [he] addressed further" at the motion
Following the evidentiary hearing, the PCR court acknowledged trial
counsel "could not recall the reason for withdrawing the initial [suppression]
motion" but decided "defendant failed to demonstrate that had his trial attorney
not withdrawn the motion that it would have succeeded on the merits." The
court found there was "no dispute that the trial [court] heard the motion to
suppress and ruled that . . . defendant gave knowing and voluntary consent," and
"also provided an explanation based upon the exigent circumstances exception."
The court found the "record is void of any testimony by . . . defendant regarding
his ability to consent and [given] it is his burden on PCR, he has failed to
demonstrate any sort of deficiency [regarding] his consent." The court
determined no credible evidence in the record, including defendant's medical
records and alcohol consumption, nor Dr. Johnson's unqualified opinion,3
showed that "defendant was incapable of knowingly and freely consenting to
having his blood drawn."
In response to our remand direction, the PCR court found trial counsel
"vigorously argue[d]" the consent issue at the suppression hearing based on his
3 Dr. Johnson did not testify at the evidentiary hearing. A-0544-23 15 "explanat[ion] that the crux of his strategy was that law enforcement should have
obtained a warrant." The court found "[t]here is nothing to support []
defendant's argument that the timing of the filing of the motion would have
affected the outcome of the motion and the trial" or that his testimony would
have resulted in the motion being granted.
Defendant argues the State failed at the evidentiary hearing to rebut the
prima facie case of trial counsel's ineffective assistance in suppressing his blood
draw and the .192 BAC. Defendant emphasizes trial counsel "did not contend
that [defendant] lacked the capacity to consent," nor did he call "[defendant] to
the stand or present other witnesses or records of his injuries." He certifies that
he did not knowingly and voluntarily provide consent, and that trial counsel was
deficient for not more aggressively pursuing this argument. Defendant
especially emphasizes he never discussed with trial counsel before the hearing
whether he would testify. We conclude, as the State contends, that, even
assuming trial counsel was deficient in pursuing his suppression motion,
defendant cannot show he was prejudiced because the trial court properly found
exigent circumstances to draw his blood.
The State has the burden of establishing a blood draw obtained through a
warrantless search "falls within one of the specific exceptions created by the
A-0544-23 16 United States Supreme Court." State v. Hill, 115 N.J. 169, 173 (1989) (citing
State v. Patino, 83 N.J 1, 7 (1980)). At the time of the trial court's written
opinion on March 6, 2015, New Jersey followed Schmerber v. California, 384
U.S. 757, 770-71 (1966), which held the exigent circumstances exception
permits the compelled taking of blood when elapsed time would lead to a
dissipation of BAC. However, on May 4, 2015, our high Court ruled that the
United States Supreme Court's decision in Missouri v. McNeely, 569 U.S. 141,
151-53 (2013), which held that the "totality-of-the-circumstances test remains
applicable whenever a court must assess for exigency in the circumstances of a
warrantless search of a person suspected of driving under the influence," would
be given pipeline retroactivity. State v. Adkins, 221 N.J. 300, 311-13 (2015).
Under the totality of circumstances analysis, a motion court should consider "the
human body's natural dissipation of alcohol," id. at 312, as well "the urgency of
the situation, the time it will take to secure a warrant, the seriousness of the
crime under investigation, and the threat that evidence will be destroyed or lost
or that the physical well-being of people will be endangered unless immediate
action is taken," id. at 310 (quoting State v. Johnson 193 N.J. 528, 553 (2008)).
"[N]o one factor is dispositive and exigency must be assessed on a case -by-case
basis under a totality-of-the-circumstances standard." Id. at 310.
A-0544-23 17 Although the retroactivity of McNeely was pending before our Supreme
Court at the time of the trial court's ruling, it applied McNeely, holding the
warrantless seizure of defendant's blood was reasonable based upon the totality
of circumstances. The trial court found:
The blood draw was accomplished 2 hours and 15 minutes from the time of the crash. Given the range of burn off rates cited in McNeeley, the blood alcohol level had possibly dissipated .034 [percent] or .05 [percent]. Had the minimum of one hour more been taken for the obtaining of a warrant, dissipation would have occurred at .05 [percent] or .07 [percent] Conceivably, at that point the defendant's blood alcohol could be entirely eliminated from the .08 [percent] required for conviction of driving while intoxicated.
The court also recognized it was "highly unlikely" the police could have
immediately obtained a warrant, given the circumstances. The police "'had their
hands full' here – 1 fatality and 6 injured people including [] defendant to be
removed to the hospital for treatment; 3 vehicles involved . . . etc."
We conclude the urgency and seriousness of the crime being investigated
rendered the search reasonable under the circumstances, as the trial court held.
Trial counsel explained at the evidentiary hearing that he withdrew the
suppression motion first because the law was unsettled at the time. Even if he
should have more "fulsomely" argued the suppression motion, defendant
cannot establish by a preponderance of the evidence that his motion to
A-0544-23 18 suppress would have been successful had counsel done so. See State v.
Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal
arguments does not constitute ineffective assistance of counsel.").
IV
Dismissal Of Juror
During trial, it was revealed that juror number 14 was "really good
friends" with the physical therapist who was treating the child paralyzed by the
crash, and that the therapist was her "bridesmaid." At a sidebar conference, trial
counsel stated he did not "have a problem with it. It seems minor to me." The
juror told the court she did not think it would affect her ability to be fair in the
case, even though she was going to a birthday party that weekend that the
physical therapist was also attending. The court told the juror not to discuss the
case with the therapist and said, "we'll talk about it on Monday to find out what
happened." In our remand opinion, we directed an evidentiary hearing to
address if there was a "sound tactical reason for defendant's trial attorney not
to" have sought juror number 14's removal. Liepe II, slip op. at 17.
Defendant testified at the evidentiary hearing that he told counsel he
wanted the juror removed. The juror's removal was not raised the following
A-0544-23 19 Monday by counsel or the court, and the juror remained on the jury and
determined defendant's guilty fate.
Trial counsel testified at the evidentiary hearing that he "rec[alled] [] an
issue came up with a juror, who I believe said that she knew one of the treating
physicians or therapists," but he could not locate his notes taken the day of jury
selection. Counsel reviewed our remand opinion and testified: "Quite frankly,
I don't know why I didn't kick her off. I probably should've." Counsel stated
he could not remember why he did not move to strike the juror. He also testified
he did not recall defendant asking that he move to strike the juror, but that
defendant "could've" done so.
The PCR court reasoned "without the benefit of trial counsel's memory as
to what actually transpired, this [c]ourt can only rely on the record." The court
found the record shows "the trial [court] was going to revisit the information
volunteered by the juror, after the weekend, [but] that was not done." However,
"[c]learly, nothing happened as the juror did not raise the issue again. More
importantly, the trial [court] asked her if she could be fair, and she affirmatively
answered that she could." The PCR court determined that any request to remove
the juror "would have been to no avail," and defendant has not shown "that if
A-0544-23 20 the attorney asked to have the juror removed, there was a 'reasonable probability'
of a different outcome."
Defendant argues he was denied an impartial jury, considering nothing
prevented the "therapist from making a remark" about the victim concerning her
treatment or character, "which stood to influence the juror's assessment of the
credibility of the victim, one of the State's witnesses." Defendant stresses that
trial counsel was "surprised" at the evidentiary hearing that he did not request
the court to remove the juror. Defendant emphasizes it was "obvious [from this
court's remand ruling] that had [trial counsel] objected to the juror remaining on
the panel the [trial court] would have excused the juror." Liepe II, slip op. at
16. Defendant contends the PCR court's "reasoning was openly defiant of this
[c]ourt's ruling on the juror issue." Defendant argues the PCR court, after
counsel did not provide an adequate strategic reason, "took it upon itself to
peruse the record to glean a possible reason for counsel's decision not to
challenge the juror," which "is the same record examined by this [c]ourt in
reaching its conclusion that a reason was not apparent on the record." Moreover,
defendant asserts the PCR court's reasons "were strained and not credible."
We fully appreciate that "[a] defendant's right to be tried before an
impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin,
A-0544-23 21 191 N.J. 172, 187 (2007). Counsel candidly testified that because he could not
locate his notes from trial, he could not recall why he did not move to remove
the juror upon reviewing the record.
Being mindful that the PCR court questioned defendant's credibility, there
is no factual basis to conclude defendant directed counsel to seek juror number
14's removal. Yet, even if we assume trial counsel was ineffective for not
seeking removal of juror number 14 or revisiting the issue following the
weekend recess, defendant has not proven he was prejudiced by counsel's
inaction.
Juror number 14 stated the therapist did not know she was serving on the
jury and her relationship with the therapist would not "[a]ffect . . . [her] ability
to be fair" in the case. The trial court instructed the juror not to "talk about the
case or let [the therapist] know that [she is] involved in the trial." We presume
the juror followed the instruction. State v. Burns, 192 N.J. 312, 335 (2007). The
court had the discretion to assess juror number 14's ability to be fair and whether
the juror should be excused. See State v. Singletary, 80 N.J. 55, 62 (1979).
There is nothing in the record persuading us that the PCR court erred in finding
that the trial court likely would not have dismissed the juror based on her
relationship with the non-testifying physical therapist given the court was
A-0544-23 22 satisfied with her answers. We further stress that there was no trial issue about
the child's injuries or the physical therapy provided. Moreover, if the court had
excused the juror, defendant has not shown there is a probability his guilty
verdict would have been different. Thus, we do not agree with defendant that
the PCR court defied our remand directive.
V
Lack Of Character Witnesses
Defendant did not present any character witnesses. With his PCR petition,
he certified he told his trial counsel about several trial witnesses, including
public figures, who would testify on his behalf, and who later wrote letters to
the court for him at sentencing. However, trial counsel "did not mention the
character witnesses or any other witnesses" at trial. In our remand opinion, we
determined the record "contains statements from four individuals acquainted
with defendant who were willing to testify about his character had they been
asked," and directed that the issue be explored at the evidentiary hearing. Liepe
II, slip op. at 21-22.
Trial counsel testified he did "not recall discussing [presenting character
witnesses at trial] with [defendant]." Yet, he explained:
[M]y position with regard to character witnesses was, if my clients testified, I believe they were appropriate.
A-0544-23 23 But where a client wasn't going to testify, for whatever reason, I believed that it wasn't appropriate to call character witnesses for the purposes of the defendant's credibility for truthfulness. There was no other issue in this case that I knew character witnesses would have been beneficial.
So the answer is I did not contemplate any character witnesses. I knew that [defendant] wasn't going to testify.
Counsel also stated he did not find any notes in his file regarding character
witnesses.
The PCR court found that given "defendant's admission that he drinks
daily and is not affected by the consumption of this amount of alcohol, it is
entirely reasonable that trial counsel's strategy, after not calling his client to
testify, was likewise not to call character witnesses." The court also found that
"[w]hile there were character letters from witnesses for sentencing purposes, this
does not demonstrate that any witnesses were willing to come to trial and attest
to the fact that . . . defendant would not act in accordance with the crimes
charged." Even assuming the witnesses were willing to testify, they "would
have been cross-examined about . . . defendant's drinking and driving habits,"
and their testimony "would have not changed the outcome of . . . defendant's
trial based on the State's evidence."
A-0544-23 24 Defendant argues that, without a legitimate reason, trial counsel dismissed
his request to contact several people to testify in his defense at trial. Defendant
argues he suffered prejudice because his witnesses had the "substantial capacity
to humanize [him] and cast reasonable doubt as to whether he had the capacity
to drive recklessly" under circumstances demonstrating an extreme indifference
to human life. Defendant assails the PCR court's finding that it was "a
reasonable strategic decision" for counsel not to call character witnesses given
defendant's assertion he drank every day and was not affected by his
consumption. Defendant maintains a "defendant can call character witnesses to
raise a reasonable doubt even if a client does not take the stand." We are
unpersuaded.
We recognize that character witnesses can aid a criminal defendant's trial
defense because they 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); see also
State ex rel. V.M., 363 N.J. Super. 529, 537 (App. Div. 2003) (holding
defendants have a "right to present evidence of [their] character to raise a
reasonable doubt about whether [they] committed the offense.").
A-0544-23 25 Importantly, the PCR court found defendant "did not appear to be
forthright" at the hearing. Though the letters in the record are all dated post -
trial––some by several years––defendant claims the writers were ready and
willing to testify on his behalf at trial. However, because there are no
certifications to that effect from the writers, defendant's bald assertions are
without merit. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999) ("[I]n order to establish a prima facie claim, a petitioner must do more
than make bald assertions that he was denied the effective assistance of counsel.
He must allege facts sufficient to demonstrate counsel's alleged substandard
performance."). After hearing defendant and trial counsel's testimony, the PCR
court found defendant's assertion was not credible; this finding is supported by
the record. Moreover, the State and PCR court correctly emphasize that
defendant's character witnesses would have been cross-examined on defendant's
drinking and driving habits, thereby supporting trial counsel's strategy not to
present them. Finally, defendant makes no showing that their testimony would
have altered the jury's verdict.
A-0544-23 26 VI
Defendant's Decision Not To Testify
Defendant did not testify at trial. With his PCR petition, he certified that
he wanted to testify at trial but trial counsel "said he would not allow me to."
He claimed his trial counsel did not discuss the "pros and cons" of him testifying,
and instead "told me to just tell the judge that I would not testify." Defendant
said he wanted to testify to tell his side of the story, and that his drinking "was
not the cause of the accident," but was essentially blocked by his counsel from
doing so.
In our remand opinion, we recognized defendant told the trial court that
he knew he had the right to testify, but this did "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." Liepe II, slip op. at 19-20. We recognized that this
may have been a "sound," "strategic choice," but directed an evidentiary hearing
to ascertain "what information defendant was given in making that choice." Id.
at 20.
At the evidentiary hearing, trial counsel testified he told defendant about
his right to testify as "I do with every client." He "recommend[ed] . . . that
A-0544-23 27 [defendant] not testify. But the ultimate decision [was] for [defendant]," as it
had been with "every single one of my clients in the last 45 years." Counsel
stated he thought defendant should not testify because defendant was too busy
running his farm and did not have time to review the trial materials, and he
would be cross-examined about his drinking habits. On cross-examination,
counsel stated "I do not believe that I had any discussion with [defendant] about
testifying in any way in this case," neither at the suppression hearing nor at trial.
However, counsel stated the "client is always told that the client is the boss.
And [defendant], I'm sure, was told that. . . . [Although] I didn't have a lot of
contact with [him]." Counsel stated the major reason for defendant not to testify
was that defendant acknowledged "that he had consumed somewhere around
eight or nine beers" at two different locations before the accident, but claimed
the accident was not caused by his drinking. Counsel felt there was "no way
around that" and "figured there'd be no hope in the trial" if defendant testified.
The PCR court found the "reasonable inference is that in fact . . . defendant
was explained the pros and cons of testifying" and "defendant's position that he
was essentially unable to make an informed decision about his right is
unconvincing." The court held there "is no evidence that trial counsel's failure
to encourage [defendant] to testify was deficient or how the decision against
A-0544-23 28 testifying resulted in prejudice," as defendant's "confirmation about his drinking
and driving habits on that day . . . would only strengthen the State's case." The
court reasoned that if defendant had testified, "it would have opened the door on
cross-examination to his drinking habits," and it is "unlikely this would have
persuaded the jury to acquit . . . [him], or otherwise effect the outcome of the
trial."
Defendant argues trial counsel merely advised him he could not testify
due to his high BAC, but did not "explain the advantages and disadvantages of
his testimony" nor did counsel make it clear it was "his choice whether to take
the stand." Defendant contends that had he taken the stand, "he could have
established that he had driven carefully until the instance in which he took his
eye off the road, and he could have exhibited remorse for his conduct." He also
could have "humanized himself" with his "down-to-earth" personality.
Defendant admits that testifying could have engendered prejudice, but maintains
he had an "absolute constitutional right" to do so, and counsel's deficient advi ce
"is a structural defect in the proceeding" from which prejudice must be
"presumed."
There is no reason to disagree with the PCR court's ruling that trial counsel
rendered effective assistance of counsel in advising defendant of his
A-0544-23 29 constitutional right to testify and defendant decided not to testify. See State v.
Savage, 120 N.J. 594, 630-31 (1990) (holding a trial counsel is constitutionally
ineffective when failing to adequately advise a defendant of the ramifications of
both testifying and remaining silent). We are satisfied that the ruling is
supported by credible evidence in the record, particularly the PCR court's
determination that trial counsel was credible while defendant was not
concerning counsel's advice to defendant not to testify. The record demonstrates
trial counsel gave thorough and sound strategic advice that defendant should not
have testified but it was defendant who decided not to testify.
Affirmed.
A-0544-23 30