RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1969-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
A.D.,
Defendant-Appellant. ________________________
Argued March 16, 2020 – Decided May 5, 2020
Before Judges Sabatino, Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-06-1463.
Ed M. Weinstock argued the cause for appellant (Levin Weinstock Levin, attorneys; Joseph A. Levin, on the brief).
Melinda A. Harrigan, Assistant Atlantic County Prosecutor, argued the cause for respondent (Damon G. Tyner, Atlantic County Prosecutor, attorney; Melinda A. Harrigan, on the brief).
PER CURIAM Defendant A.D.1 appeals an order denying his petition for post-conviction
relief (PCR) issued by Judge Bernard E. DeLury, Jr., who also presided over his
trial, following a limited evidentiary hearing. We affirm.
I.
Tried by a jury, defendant was convicted on October 22, 2010 for three
counts of second-degree endangering the welfare of a minor by engaging in
sexual conduct with her when she was less than sixteen-years-old, N.J.S.A.
2C:24-4, and one count of third-degree aggravated criminal sexual contact of a
minor when she was at least thirteen but less than sixteen years old, N.J.S.A.
2C:14-3(a). The victim was defendant's niece by marriage, Annette. Defendant
was also tried on charges of sexual contact with Annette's younger sister
Amanda, but the jury was unable to reach a verdict on those charges. He was
sentenced to an aggregate twelve-year prison term. We affirmed defendant's
conviction on direct appeal. State v. A.D., No. A-4343-10 (App. Div. March
10, 2014), certif. denied, 220 N.J. 573 (2015).
In January 2016, defendant filed a PCR petition seeking a new trial
making the following ineffective assistance of counsel claims: (1) pre-trial
1 We use initials and pseudonyms to protect the privacy of the child victim and family members. R. 1:38-3(c)(9).
A-1969-18T4 2 counsel and trial counsel (also referred to as "counsel") failed to discover
exculpatory documents from the Division of Child Protection and Permanency
(DCPP),2 which defendant alleges are new evidence entitling him to a new trial;
(2) trial counsel failed to inform defendant about trial co-counsel's (also referred
to as "co-counsel") conflict of interest that became known during trial; (3) trial
counsel elicited testimony from the two alleged victims' mother during cross-
examination that was prejudicial to the defense, and appellate counsel failed to
argue the issue on direct appeal; (4) trial counsel failed to identify and have
testify the author of a medical report purporting the alleged victims had a
"mental condition" causing them to lie about the allegations; (5) trial counsel
failed to elicit testimony from defendant's son, who certified the pool at
defendant's house was closed when the alleged incidents happened in the pool;
and (6) trial counsel failed to procure an expert to testify the red marks on the
victim's neck may not have been a hickey caused by suction from lip pressure.
On July 18, 2017, the judge issued a discovery order directing: (1) the
DCPP to provide for in camera review all mental health professional reports
regarding any allegations of illicit sexual acts perpetrated on the victims by
2 The DCPP was known as the Division of Youth and Family Services when the victims' allegation arose and were reported. L. 2012, c. 16, § 20. A-1969-18T4 3 defendant which the court was not in possession of; (2) the DCPP to make
available to defendant's counsel and the State, without disclosure to any third
party unless ordered by the court, any mental health professional reports
contained in its records regarding the victims' allegations against defendant; and
(3) Martin Finkel, D.O. to advise the State whether he authored a report
regarding the victims' allegations against defendant, and the State to advise
defendant of Dr. Finkel's response. Two months later, the judge ordered a DCPP
report be delivered to Monica Weiner, M.D. for the limited purpose of her
review and to advise whether she authored the report and if its contents were
true and accurate. 3
In October 2018, an evidentiary hearing was held on the limited issue of
whether co-trial counsel had a conflict of interest in representing defendant
because she had briefly coached a cheerleading squad which included Amanda,
who testified at trial. Defendant's other PCR claims were decided on the papers
without a hearing.
3 Six months later in March 2018, the judge ordered PCR counsel to forward his supplemental brief to defendant without disclosure of any of the DCPP documents contained in the appendix but to provide defendant a summary of the documents. In July 2018, the judge compelled the DCPP to disclose to defendant any reports it had regarding defendant's alleged unlawful conduct with the victims. A-1969-18T4 4 On December 12, 2018, the judge issued an order and a fifty-eight-page
written decision dismissing the petition without an evidentiary hearing. The
judge denied relief; finding defendant failed to establish a prima facie case of
ineffective assistance of counsel under the two-prong test of Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984) and State v. Fritz, 105 N.J. 42, 58
(1987), that the performances of trial counsel, trial co-counsel and appellate
counsel were deficient and that, but for the deficient performance, the result
would have been different at trial and on appeal.
II.
Before us, defendant contends:
POINT I
THE PCR[] COURT COMMITTED REVERSIBLE ERROR IN DENYING PETITIONER'S POST- CONVICTION RELIEF APPLICATION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S PREJUDICIAL CONFLICT OF INTEREST UNDER RULE OF PROFESSIONAL CONDUCT 1.7.
POINT II
THE PCR[] COURT COMMITTED REVERSIBLE ERROR IN DENYING PETITIONER'S POST- CONVICTION RELIEF APPLICATION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO OBTAIN ALL OF THE [DCPP] RECORDS, TO HAVE THE
A-1969-18T4 5 JURY LEARN OF THE EXCULPATORY EVIDENCE CONTAINED IN THE [DCPP] RECORDS, AND TO DEEM THE [DCPP] MATERIALS NEWLY DISCOVERED EXCULPATORY EVIDENCE.
POINT III
THE PCR[] COURT COMMITTED REVERSIBLE ERROR IN DENYING PETITIONER'S POST- CONVICTION RELIEF APPLICATION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO CALL A MEDICAL EXPERT TO TESTIFY, RESULTING IN HIS UNJUST CONVICTION.
POINT IV
THE PCR[] COURT COMMITTED REVERSIBLE ERROR IN DENYING [DEFENDANT'S] POST- CONVICTION RELIEF APPLICATION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO ELICIT TESTIMONY THAT PETITIONER COULD NOT HAVE PERPETRATED ANY OF THE ACTS THAT ALLEGEDLY OCCURRED IN THE POOL.
POINT V
THE PCR[] COURT COMMITTED REVERSIBLE ERROR IN DENYING [DEFENDANT'S] POST- CONVICTION RELIEF APPLICATION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S IMPROPER ELICITATION OF TESTIMONY THAT THE ACCUSERS' AUNT AND MOT[H]ER WERE SUBJECT TO SEXUAL ABUSE.
A-1969-18T4 6 POINT VI
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL FAILED TO OBTAIN[]AN EXPERT TO EXPLAIN THAT THE DEFENDANT DID NOT CAUSE THE MARK ON ANNETTE'S NECK.
Considering these arguments in light of the record and applicable legal
standards, we affirm substantially for the reasons set forth by the judge in his
well-written decision. We limit our discussion of the factual record pertinent to
defendant's arguments and the reasoning applied by Judge DeLury.
A. Conflict of Trial Co-Counsel
Following trial counsel's cross examination of Amanda, whose testimony
included assertions that defendant inappropriately touched her, and that Annette
told her the hickey on her neck was given to her by defendant, there was a break
and the jurors retreated to the jury room. Trial co-counsel then advised the judge
she recognized Amanda from coaching her in cheerleading. Co-counsel stated,
"I don't know if she recognized me. Her testimony seemed genuine. . . . I don't
think it affected it, but I want the record clear." The prosecutor had no objection,
and trial counsel indicated he did not perceive any prejudice. The judge stated
"[t]o the extent that there's anything that needs to be waived, I take it the defense
A-1969-18T4 7 waives it," to which trial counsel replied "[y]es." Although defendant was
present during Amanda's testimony, the trial transcript does not indicate whether
he left the courtroom before or during the colloquy.
At the PCR evidentiary hearing, defendant, counsel, and co-counsel all
testified regarding the claim that co-counsel had a conflict of interest because
she had coached Amanda. Defendant stated he was not present during the
judge's conflict of interest colloquy at trial with counsel and co-counsel.
Counsel stated he did not remember whether defendant was in the
courtroom at the time when he waived a claim of conflict of interest but he
"would not have done something like that without a defendant being present."
Counsel admitted he did not seek defendant's informed consent to have co-
counsel remain on the defense team after her disclosure. As for co-counsel's
duties on the defense team, counsel stated co-counsel assisted him with the case,
but counsel "did all the cross, all the direct, the closing, [and] the opening." He
stressed co-counsel's recognition of Amanda did not "make a darn bit of
difference in the way [he] did [his] cross-examination and [his] preparation
because [he] didn't know the young lady[.]"
Co-counsel testified when she realized she recognized Amanda, she
immediately alerted trial counsel, defendant, the prosecutor, and the judge. Co-
A-1969-18T4 8 counsel could not remember how she alerted defendant; she was uncertain
whether she discussed it with him, whether defendant gave her informed
consent, or whether defendant signed any document waiving a conflict of
interest. However, she was certain defendant was in the courtroom when she
informed the judge that she recognized Amanda.4 Co-counsel's recollection of
her duties representing defendant was consistent with counsel's testimony,
stating she attended arraignments, status conferences and pretrial conferences,
helped prepare for trial, and sat "second chair for most of [the trial.]" Regarding
her interaction with Amanda, co-counsel stated she was not Amanda's regular
coach but coached Amanda's cheerleading team – between fifteen to thirty girls
– for about four sessions lasting approximately one to two hours each, in
preparation for a local all-star football game. The practices took place
throughout the trial. Co-counsel never had one-on-one personal contact or any
type of personal conversation with Amanda during the practices or the actual
game.
Defendant argues co-counsel's relationship with Amanda, constituted a
per se conflict of interest under RPC 1.7(a)(2), which he did not waive through
4 There is no reciprocal indication in the record that Amanda recognized co - counsel. A-1969-18T4 9 informed consent, thereby constituting ineffective assistance of counsel. RPC
1.7(a)(2) provides:
a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if . . . there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to . . . a third person or by a personal interest of the lawyer.
Alternatively, defendant contends even if there was no per se conflict of interest,
the relationship was significant and prejudicial, and thus, constituted ineffective
assistance of counsel.
In his written opinion, Judge DeLury found trial counsel and co-counsel
were not ineffective due to a conflict of interest. The judge noted that while he
did not have a specific recollection of how the persons in the courtroom were
positioned during Amanda's trial testimony, he rigorously applies Rule 3:16
regarding a defendant's presence during the trial proceedings.5 The judge
5 Rule 3:16 provides in pertinent part:
(a) Pretrial. The defendant must be present for every scheduled event unless excused by the court for good cause shown.
(b) At Trial or Post-conviction Proceedings. The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of
A-1969-18T4 10 credited the testimony of counsel and co-counsel over defendant's PCR
testimony, explaining:
[Defendant's] demeanor was guarded and he appeared rehearsed. He testified, in the [c]ourt's view, with less credibility, particularly with respect to his whereabouts in the restroom while the colloquy with the court was conducted during the trial. Perhaps the [defendant] was remembering a different instance that placed him outside the courtroom. However, his testimony and recollection of events are belied by both the record and the credible testimony of . . . [counsel] and [co- counsel].
Furthermore, the judge reasoned:
I would not have conducted such a colloquy concerning a potential conflict without the presence of the defendant on trial. In hindsight, I could have conducted a more robust and probing colloquy. However, whatever shortcomings the court displayed in no way reflects upon the effectiveness of trial counsel. In sum, [defendant's] lawyers brought a potential conflict to the attention of the court. The court made an inquiry and acted in the presence of the accused. There was nothing
the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence. A-1969-18T4 11 else for trial counsel to do. As such, trial counsel was not ineffective. But, even if they were ineffective in their handling of the potential conflict, that would not have altered the outcome of the case. The jury returned its verdict only on the claims related to [Annette] and not [Amanda]. The actions of counsel in handling the issue had no negative impact on the outcome of the trial.
Finally, even if there was a conflict of interest, the outcome of the proceedings would not have changed. Because . . . [co-counsel] had such a limited role in the actual trial and both she and . . . [counsel] expressed to the [c]ourt that they could continue to do their job without any interference, there would not have been any difference in the proceedings having a bearing on the outcome.
We have no issue with the judge's factual findings because they are
"substantially influenced by [his] opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot enjoy[,]" and "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)).
Moreover, we find no fault in the judge's reasoning. There is no per se
conflict of interest because the record does not indicate co-counsel was
representing Amanda at the time. State v. Norman, 151 N.J. 5, 24-25 (1997)
(holding a conflict of interest is either: (1) a per se conflict, where prejudice is
presumed, absent a valid waiver; or (2) a "potential or actual conflict of interest
A-1969-18T4 12 [which] must be evaluated and, if significant, a great likelihood of prejudice
must be shown in that particular case to establish constitutionally defective
representation of counsel"). In addition, the charges against defendant were
being prosecuted by the Atlantic County Prosecutor's Office, and co-counsel
was not being prosecuted by that office. State v. Cottle, 194 N.J. 449, 473
(2008) (finding a per se conflict arises when the same prosecutor's office is
simultaneously prosecuting counsel and his client in different matters).
Given the absence of a conflict per se, defendant failed to establish he was
prejudiced by co-counsel's limited involvement with Amanda. It was counsel
who conducted all the witness examinations, performed the opening and closing,
and argued all the motions. Co-counsel served as "second chair" with no active
involvement during the proceedings except supporting counsel. There is no
indication counsel was in any way affected by co-counsel's limited involvement
with Amanda. Moreover, the lack of any significant relationship between co-
counsel and Amanda is borne out by the fact co-counsel only recognized
Amanda after she testified. Additionally, the transcript contains no indication
in the substance of her testimony that Amanda was altering her testimony
because of co-counsel's presence in the courtroom. In sum, there is no indication
that Amanda's testimony was affected due to co-counsel's coaching of Amanda's
A-1969-18T4 13 cheerleading squad. See Norman, 151 N.J. at 25 (ruling a potential conflict
"must be evaluated and . . . a great likelihood of prejudice must be shown . . . to
establish constitutionally defective representation of counsel").
Defendant's reliance on State v. Lasane, 371 N.J. Super. 151 (App. Div.
2004) is distinguishable from the situation before us. In Lasane, this court found
the defendant could not rely on the advice of his counsel after his counsel had
engaged in a sexual relationship with the defendant's mother. 371 N.J. Super.
at 163. Aggravating the matter, at the time of the relationship the defendant had
not yet been sentenced and relied more on his counsel's advice regarding
withdrawal of his guilty plea – which he did. Ibid. In contrast, defendant here
has not shown how he was prejudiced because of the advice he received by
counsel or co-counsel, or that his legal representation was somehow influenced
by co-counsel's involvement with Amanda, which was improbable given co-
counsel did not recognize Amanda until she ended her testimony and counsel
only learned of the situation after he completed his questioning of Amanda.
B. Discovery of Division Documents
In advance of the trial, the pretrial judge ordered the DCPP to turn over
for in camera inspection all its records regarding abuse allegations by Annette
and Amanda against defendant and their mother to determine if the records could
A-1969-18T4 14 be released to defendant's trial counsel. Upon reviewing the documents, the
judge forwarded only the discoverable materials to the parties with the
requirement that a protective order be signed limiting their use of the documents.
Among the documents were Dr. Weiner's April 17, 2007 examination report of
Amanda,6 and Dr. Sapp's July 25, 2008 examination reports of Annette and
Amanda.
None of the three medical examination reports included assertions the
girls were lying about their accusations against defendant. Nonetheless, after
his conviction and direct appeal, defendant executed a certification stating
during his representation by trial counsel, a report authored by a mental health
professional was shared with him "that indicated the allegations of the minor
accusers . . . were incredible." Defendant asserted counsel failed to explain why
he didn't call the mental health professional to testify on his behalf. Later,
despite a concerted effort, PCR counsel could not locate the purported report, as
pre-trial counsel, counsel, appellate counsel, and the trial prosecutor could not
6 This report was initiated due to a concern of physical abuse, apparently at the hands of the girls' mother, and was not related to the allegations against defendant. However, the report, drafted after the sexual touching was alleged to have begun but before it was disclosed, contains Amanda's denial of any sexual abuse. We presume this report was released by mistake, as portions of subsequent examination reports authored by Mark Sapp, M.D., FAAP, referencing the prior incident of physical abuse, are redacted. A-1969-18T4 15 recall seeing it. That said, the transcript of defendant's trial contains a reference
by the prosecutor to "the other doctor." In response to the PCR claim that this
report exists, the prosecutor certified "the other doctor" she referred to during
trial was Dr. Sapp because no other examinations of the girls directly related to
the criminal charges were conducted.
At defendant's request during the PCR proceedings, Judge DeLury
ordered discovery to confirm the existence of any undisclosed mental health
professional's report in the possession of the DCPP, or whether Dr. Martin
Finkel, Dr. Sapp's supervisor, authored any report regarding the girls. The order
produced a variety of documents created after defendant's alleged sexual abuse
occurred, but before Annette's disclosure of the abuse, related to an incident of
physical abuse against Amanda by her mother. One such document, a DCPP
safety assessment dated July 11, 2008, was written a few days after Annette's
disclosure of sexual abuse and the author indicated a "no" answer to whether
"[c]hild sexual abuse/exploitation is suspected and circumstances suggest that
child safety may be an immediate concern." Nothing in the record indicates the
author of the safety assessment knew of the sexual abuse disclosure Annette
made against defendant a few days earlier.
A-1969-18T4 16 Defendant contends the DCPP documents received after he filed for PCR
contain exculpatory information and trial counsel was ineffective for failing to
discover them before his trial. Defendant points to Dr. Wiener's April 17, 2007
report regarding Amanda's allegation of being physically abused by her mother,
in which Amanda denied she was sexually abused before disclosure of
defendant's sexual abuse against her and Annette, but after the sexual abuse
occurred. Defendant argues had trial counsel obtained this report, he would
have been aware that documents relating to the incident of the mother's physical
abuse of Amanda also contained exculpatory information. Defendant also
argues Dr. Sapp's report contains Amanda's statement that was contradictory to
the one she gave to the police, and counsel failed to impeach her with it.
The judge denied defendant's request for a new trial based on newly
discovered evidence because the DCPP documents: (1) did not include
inconsistent information from the evidence presented at trial; (2) were requested
by counsel but the pre-trial judge ruled they were undiscoverable; and (3) were
not exculpatory, and if presented at trial would not have altered the jury's
verdict. State v. Carter, 85 N.J. 300, 314 (1981) (providing for newly discovered
evidence to warrant a new trial, a defendant must show that: (1) the evidence is
material and not merely cumulative, impeaching, or contradictory; (2) the
A-1969-18T4 17 evidence was discovered after the trial and was not discoverable by reasonable
diligence beforehand; and (3) the evidence would probably change the jury 's
verdict if a new trial were granted).
As the judge properly found, there is no basis for defendant's claim that
trial counsel was ineffective for not discovering the DCPP documents before
Judge DeLury ordered their release to PCR counsel. Counsel's access to the
documents was barred due to the pre-trial judge's ruling following his in camera
review. Counsel cannot be blamed for that ruling, and there is no contention
counsel did not make the proper argument to obtain release of the documents.
The judge also correctly applied Carter in finding the newly disclosed evidence
did not warrant a new trial. Furthermore, we significantly doubt the new
documents detailing Annette did not disclose her alleged abuse to authorities
prior to disclosing her mother's abuse are material to her and Amanda's
allegations against defendant; thus, they would have been inadmissible. See
State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000) ("The materiality
standard is satisfied [only] if defendant demonstrates that there is a reasonable
probability that had the evidence been disclosed to the defense, the result of the
proceeding would have been different.").
A-1969-18T4 18 C. Failure to Call Witnesses
Defendant asserts trial counsel was ineffective for failing to call the
mental health professional who wrote the report indicating the girls' accusations
were not credible and they had medical conditions keeping them from telling the
truth. According to defendant, a Clawans7 charge that an adverse inference be
drawn for failure to call the report's author, should have been made by counsel.
Had the author of the report testified, defendant maintains he would not have
been found guilty of sexually touching Annette.
Judge DeLury explained that the potential witnesses would have either
been Drs. Sapp or Finkel, who would have testified to the general procedures
for examining sexual assault victims, and not to their credibility as witnesses.
Therefore, he found neither doctor would have presented any exculpatory
evidence. The judge further found counsel's failure to request a Clawans charge
was irrelevant because the doctors would not have produced any evidence that
would have been exculpatory, and their failure to testify was not unfavorable to
defendant. In short, the decision was trial strategy and did not prejudice
defendant.
7 State v. Clawans, 38 N.J. 162 (1962). A-1969-18T4 19 There is no merit to defendant's claim on appeal that a report exists
purporting the girls had a mental condition that prevented them from telling the
truth surrounding the allegations and trial counsel failed to produce it at trial.
Defendant's contention amounts to nothing more than a bald assertion as no such
report has been verified by anyone other than defendant. 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."). The record
indicates, of the reports authored by Drs. Wiener and Sapp, none of them
reference the alleged victims' credibility as claimed by defendant.8 Defendant's
bald assertion negates the need for any discussion regarding his entitlement to
an evidentiary hearing on the issue or a Clawans charge. State v. Jones, 219
N.J. 298, 311-12 (2014).
D. Failure to Elicit Testimony the Pool Was Closed
Included among the various times defendant inappropriately touched her,
Annette testified the first time occurred when defendant touched her buttocks
8 Each girl was subject to two examination reports, one taken before and one after Annette's disclosure of the sexual abuse. A-1969-18T4 20 and vagina two times while they were alone when he was teaching her to do
backstroke at his home swimming pool during the summer of 2006. During
defendant's testimony, he stated on cross-examination he was never in the pool
alone with Annette but made no claim the incident could not have occurred
because the pool was closed.
Defendant's PCR petition contended trial counsel was ineffective for
failing to elicit testimony that the pool incident was not possible due to the pool's
closure. In support of PCR, defendant's son, executed a certification stating
that back in 2006-2007 when [defendant] was trying to sell his house in question that the swimming pool was closed and no one had access to it as a result. I remember that from the time it was closed back then that it was never opened again unless the new owners decided to open it.
The judge rejected the claim, reasoning:
Although [defendant's] son did not testify for the defense, his wife, did. She shared the home with . . . [defendant] where the pool was located. Since she lived with . . . [defendant], and the record is unclear as to whether [his] son lived with them, she was in a better position to testify to the pool closure than . . . [defendant's] son would be. However, [his wife] did not mention that the alleged incident was impossible due to the pool closure. Moreover, . . . [defendant] himself testified at trial and did not mention the impossibility of the alleged incident due to the pool closure. Therefore, trial counsel was not ineffective for failing to call the son as a witness because he instead
A-1969-18T4 21 called [his wife], who was in a better position to testify about the issue.
There is no support in the record for defendant's argument that counsel
was ineffective for failing to elicit testimony regarding the alleged closure of his
pool. Defendant relies solely on his son's PCR certification alleging the pool
was closed. Given defendant and his wife both testified at trial, they surely
would have been in a position to inform the jury their pool was closed during
the summer of 2006. They both testified about the pool incident, and neither
stated the incident could not have occurred as Annette alleged because their pool
was closed. The son was not living with his parents at the time he claimed the
pool was closed and was not in a better position to attest to its closure. There
was no explanation why he recalled this, and they did not. More importantly,
there is no indication that counsel was made aware, or should have been aware,
of the son's claim the pool was closed in the summer of 2006.
E. Trial Counsel's Examination of the Girls' Mother
During cross-examination of the girls' mother, trial counsel elicited
testimony that because she and her sister were sexually abused as children, she
stressed to her daughters at a young age to tell her if someone touched them
inappropriately. Defendant contends counsel was ineffective for presenting this
evidence to the jury. Defendant argues the testimony should not have been
A-1969-18T4 22 admissible under N.J.R.E. 401, 402 and 403 as it was not relevant or probative
and its admission constituted prejudicial reversible error because it had no
bearing on whether defendant was innocent or guilty.
Judge DeLury disagreed, finding:
[T]his testimony was relevant. It is likely . . . this testimony was elicited to demonstrate how the victim's mother was sensitive to the issues of abuse and why she had told her daughters about the existence of sexual abuse. This testimony was relevant to question why the victims waited two . . . years to come forward with their accusations against . . . [defendant], despite the fact that their mother encouraged them to talk to her about this type of situation.
We join the judge's reasoning. The elicitation of testimony regarding the
girls' mother's own experience with sexual abuse was beneficial to defendant to
cast doubt on the girls' credibility. Trial counsel's pointed questioning
established the mother was sensitive to sexual abuse issues and she counseled
her girls when they were young that it was okay to tell her if someone touched
them inappropriately. Thus, trial counsel was able to argue that due to the girls
delay in reporting the defendant's alleged abuse it was less likely the girls were
pressured into not disclosing the abuse, and more likely they had fabricated the
allegations.
A-1969-18T4 23 Defendant also argues appellate counsel was ineffective for not
contending on direct appeal the testimony regarding the sexual abuse history of
the girls' mother and aunt prejudiced his defense because the jury could have
rationally concluded that because their mother and aunt were sexually abused,
so were the girls. The judge rejected this claim based upon his finding the
testimony was relevant and was not prejudicial to defendant.
To obtain a new trial based on ineffective assistance of appellate counsel,
it must be established that appellate counsel failed to raise an issue that would
have constituted reversible error on direct appeal. State v. Echols, 199 N.J. 344,
361 (2009). Appellate counsel will not be found ineffective if the failure to
appeal the issue could not have prejudiced the defendant because the appellate
court would have found, either, that no error had occurred or that it was
harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State v. Harris, 181
N.J. 391, 499 (2004). Since trial counsel's strategy to elicit the testimony was
sound, there was no reason why appellate counsel should have contended
prejudicial error occurred.
F. Failure to Obtain an Expert Witness
Three witnesses testified at trial about a hickey on Annette's neck.
Annette testified that on her birthday defendant put his mouth on her "private
A-1969-18T4 24 area" and gave her a hickey on her neck. Amanda testified she saw a red mark
on Annette's neck while the girls were playing basketball, and when she asked
Annette about it, Annette told her defendant gave it to her. The girls' aunt,
defendant's wife, also testified that a few days before Annette told her defendant
abused her, she joked with Annette about what looked like a hickey on Annette's
neck. She also recalled seeing what looked like hickey marks on Annette earlier,
which Annette told her resulted from a wrestling incident with Annette's brother.
Defendant's wife further suspected the hickey was given to Annette by her male
cousin, who had spent a lot time alone with Annette in an empty room in their
home.
In seeking PCR, defendant claimed trial counsel was ineffective for failing
to obtain an expert to explain that the marks on Annette's neck could be
something other than a hickey. PCR counsel had pictures of Annette's neck
reviewed by a medical expert, Dr. Stephen Schleicher. In a letter to PCR
counsel, the doctor wrote:
Although suction from lip pressure is possible, I cannot state with medical certainty that this is the definitive cause of the redness. Pressure induced by a suction device or contact dermatitis cannot be excluded based on the provided photographs. Opinions given in this report are within a reasonable degree of medical certainty.
A-1969-18T4 25 In denying the ineffectiveness claim, Judge DeLury noted counsel
explored alternate theories that defendant was not responsible for the mark on
Annette's necks though testimony that: Annette's cousin or brother could have
done it; Amanda stated another mark on Annette's neck was different than the
mark Annette claimed was given to her by defendant; and that Annette and
Amanda initially denied any inappropriate touching occurred. The judge also
determined the decision not to present an alternate theory was trial strategy.
We conclude, as did the judge, defendant's claim that trial counsel failed
to explore alternate theories on how the mark on Annette's neck was created is
belied by the record. There were ample explanations offered to the jury that the
marks on Annette's neck were not the result of defendant sucking on her neck.
Furthermore, Dr. Schleicher does not provide an opinion within a reasonable
degree of medical certainty that the mark was not a hickey because he admits it
could be a hickey. Thus, defendant has not set forth a prima facie case that
counsel was ineffective.
Affirmed.
A-1969-18T4 26