NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Althoug h 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-2486-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEPHEN F. SCHARF,
Defendant-Appellant. _____________________________
Submitted March 12, 2020 – Decided August 31, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-08-1485.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Mark Musella, Bergen County Prosecutor, attorney for respondent (Ian C. Kennedy, Assistant Prosecutor, of counsel; Catherine A. Foddai, Legal Assistant, on the brief).
PER CURIAM Defendant Stephen F. Scharf appeals from the December 5, 2018 order of
the Law Division denying his petition for post-conviction relief (PCR) without
an evidentiary hearing. We affirm.
I.
The following facts are derived from the record. Because we write only
for the parties, we provide an abbreviated rendition of the facts relevant to
defendant's PCR claims.
On September 20, 1992, a man entered a police station to report that
someone, later identified as defendant, had flagged him down at a highway rest
stop seeking help because his wife had fallen off a cliff. The police did not
record the man's name or contact information.
Officers who responded to the scene met with defendant who said he and
his wife, Jody Ann Scharf, stopped at the park on their way to a date and were
sitting on a ledge at the top of a cliff. Defendant told the officers that when he
got up to get a blanket and wine from his car, his wife stood up, asked him not
to go, and fell off the cliff.
Rescue personnel rappelled down the cliff to look for Jody.1 The officers
found her purse and some of its contents scattered on an outcropping about eight
1 Because defendant and Jody shared a surname, we use her first name. A-2486-18T1 2 feet below the ledge. They did not photograph the evidence or document its
location. The officers placed the contents back into the handbag, which they
tossed up to another officer. As they progressed downward, the officers found
no indication someone had fallen down the face of the cliff, including a lack of
debris, clothing, blood, hair, tissue, or broken branches.
The officers located Jody's body face-down between a tree and a rock
approximately 119 feet vertically and fifty-two and half feet horizontally from
the ledge. Jody showed no signs of life and had substantial physical injuries,
including severe trauma to her skull and chest. The officers identified an
apparent impact point on an overhanging tree, which was covered in blood and
tissue, eight feet above the body.
The officers did not photograph Jody's body or otherwise document its
location. Nor did they collect blood or tissue samples from the apparent point
of contact in the tree. The officers moved the rock next to the body without first
photographing the rock or documenting its location. The officers gave
conflicting accounts of whether there had been blood on the rock. Photographs
of the tree taken later do not show the rock. The officers put the body in a basket
and lowered it to a road at the cliff base. The clothing on Jody's body was
destroyed after being turned over to a funeral home director.
A-2486-18T1 3 The medical examiner, who did not go to the scene, pronounced Jody dead
over the telephone. After an autopsy, she determined the cause of death as
"multiple fractures and injuries" but listed the manner of death as "pending
investigation." In 1993, the medical examiner changed the manner of death to
"could not be determined."
On the night of the incident, defendant consented to a search of his car,
which revealed, along with a number of other items, a claw hammer. In an
interview at the police station, defendant said the hammer was in the car because
he had been using it to fix a drawer in the kitchen of the couple's home, placed
it in a bag intending to drop it off in the garage as he left for the park with Jody,
but forgot to do so. Police did not record defendant's interview.
When police later searched defendant's home, they did not photograph or
seize the kitchen drawer. An officer testified that during the search of
defendant's home, defendant spontaneously turned to the officer and asked:
"[Y]ou don't believe this was an accident[?]" or "[Y]ou don't believe me[?]" The
officer said he believed an accident had occurred, to which defendant "said,
[']no,['] and put his head down" and, shortly after, asked to speak with a priest.
The officer recounted the conversation with a detective, but did not write a
report detailing the exchange. Another officer recalled writing a report about
A-2486-18T1 4 the conversation but was unable to locate it. Defendant initially was not charged
in connection with Jody's death.
In 2004, the prosecutor's office began a "comprehensive review" of the
matter. In 2006, the medical examiner visited the location at which Jody's body
was found. Having viewed the scene, and with greater experience examining
fall victims, she determined Jody's injuries were inconsistent with a passive fall
down the cliff face and were indicative of her having been propelled off the cliff.
In 2007, she amended the death certificate to state homicide as the manner of
death. She did not take measurements at the scene or samples of tree bark to
compare to Jody's injuries.
The investigation also revealed the couple's marriage was unhappy, with
both defendant and his wife openly having affairs. Defendant told inconsistent
stories to the women he was dating. He told one woman that his wife had died
in an automobile accident in 1979, and his son was from a different relationship.
To another woman, defendant said he and Jody were in the process of divorcing.
Shortly before Jody's death, he told a woman he was dating that he was fighting
with his son's mother over custody but that most of the stress he was under would
be gone in September.
A-2486-18T1 5 In addition, the investigation revealed defendant obtained an insurance
policy on Jody's life with an accidental disability benefit. He collected more
than $700,000 from the policy.
Investigators documented numerous statements by Jody to her friends and
therapist expressing fear of defendant. She told one friend she was concerned
defendant would harm her if she served him with a divorce complaint and to
suspect defendant if she died under unusual circumstances. Jody told her
defendant "really . . . wants me gone . . . . " She told her therapist that she
suffered mental and physical abuse from defendant, who she described as very
punitive. The therapist reported that about a month before her death Jody
recounted that defendant said that he had been to a park on the Palisades with a
beautiful view and that he wanted to take Jody there. Jody told defendant he
"was crazy" and would not go to a cliff.
Two weeks before Jody died, her attorney served defendant with a divorce
complaint, alleging he was unfaithful and abusive. Jody told a friend defendant
was unhappy she was seeking a divorce, that she was afraid of him, and wanted
him out of the house. The day before her death, Jody told a friend that defendant
"threatened her life" and would rather "see her dead before . . . he would sign"
A-2486-18T1 6 the divorce papers. She told another friend she was "afraid [defendant] was
going to kill her because of the divorce."
The couple's son told investigators Jody had expressed fear of defendant
and refused to be alone with him. He also stated Jody was extremely fearful of
heights and doubted she would sit on a ledge on a cliff. In addition, he told
police Jody had told him defendant was "hitting her, abusing her and seeing
other people . . . [a]nd she could[ not] take it anymore," which was the reason
she filed for divorce.
On August 13, 2009, defendant was indicted by a grand jury for the
knowing and purposeful murder of Jody, N.J.S.A. 2C:11-3(a)(1) and (2). At
trial, two experts and the medical examiner offered their opinions that Jody
could not have fallen as she did without having been pushed off the cliff.
Defendant presented expert testimony that Jody fell accidentally, striking the
outcropping where her purse and its contents were found, which propelled her
further out horizontally and caused her to have four or five impacts before
striking the tree.
A jury found defendant guilty of murder, contrary to N.J.S.A. 2C:11-
3(a)(1) and (2). The trial court sentenced defendant to life imprisonment with a
thirty-year period of parole ineligibility.
A-2486-18T1 7 On direct appeal, we reversed defendant's conviction, holding the trial
court erred by admitting Jody's out-of-court statements to her friends and
therapist. State v. Scharf, No. A-1580-11 (App. Div. Aug. 11, 2014). The
Supreme Court reversed, reinstating defendant's conviction and remanding to us
to consider defendant's argument that the trial court erred by not charging the
jury on manslaughter. State v. Scharf, 225 N.J. 547 (2016).
While the remand was pending, defendant filed a petition for PCR. The
trial court dismissed the petition without prejudice to be refiled within ninety
days of the outcome of the remand proceedings.
On January 27, 2017, we rejected defendant's jury instruction argument
and affirmed his conviction. State v. Scharf, No. A-1580-11 (App. Div. Jan. 27,
2017). The Supreme Court denied certification. State v. Scharf, No. 078952
(Mar. 21, 2017).
On May 26, 2017, defendant refiled his petition for PCR. He alleged he
was deprived the opportunity to raise an effective defense and to cross-examine
witnesses because the State failed to collect and preserve evidence. He also
alleged ineffective assistance of trial counsel because his attorney: (1) did not
call him as a witness at a hearing on his motion to suppress his statements to
police; (2) advised him not to testify at trial to prevent cross-examination about
A-2486-18T1 8 his extramarital affairs, even though evidence of those affairs was admitted
through other witnesses; (3) failed adequately to argue defendant was harmed
by the State's spoliation of evidence; and (4) did not request an adverse inference
jury charge based on spoliation. Finally, defendant argued his appellate counsel
was ineffective for not raising arguments based on spoliation.2
On December 5, 2018, Judge James X. Sattely issued a comprehensive
and well-reasoned written opinion denying defendant's PCR petition without an
evidentiary hearing. The judge found defendant's allegations regarding the
spoliation of evidence and the absence of an adverse inference jury instruction
to be barred by Rule 3:22-4 because those claims could have been, but were not,
raised in defendant's direct appeal. With respect to the cross-examination of
witnesses, the trial court found that defendant "does not cite to any of the State's
witnesses that he was not permitted to cross-examine or a denial of any
opportunity to confront his accusers."
2 Defendant also alleged trial counsel was ineffective because he failed to object to the admission of excessive autopsy photographs. Because he does not raise the issue in his brief, we deem it to be waived. "[A]n issue not briefed is deemed waived." Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief). A-2486-18T1 9 With regard to the deprivation of the defendant's right to testify at trial,
the court held that:
[t]rial counsel stated on the record that counsel and the defendant spoke extensively about the defendant's right to testify. [The trial court] then followed up with the defendant to ensure the defendant understood it was his decision as to whether or not the defendant wanted to testify. The defendant affirmed he had decided not to testify and that the defendant wanted [the court] to read the [e]lection [n]ot [t]o [t]estify charge to the jury. The defendant was presented with two opportunities on the record to testify on his own behalf and both times chose not to. The defendant did not object or oppose . . . the statements made by his counsel stating they had discussed the option of testifying.
....
Even if this was a strategic decision by counsel and not the defendant's personal choice, the defendant's argument does not reach a level in which trial counsel was acting below a standard of an objective reasonable representation. Defendant has not shown that trial counsel's performance was defective. Therefore, the defendant fails to prove the first prong of [his ineffective assistance of counsel claim.]
Addressing defendant's argument with respect to not testifying at the
suppression hearing, Judge Sattely held that trial counsel raised numerous points
at the suppression hearing with respect to the voluntariness of defendant's
statements to police that defendant argues would have been addressed in his
A-2486-18T1 10 testimony. The judge found defendant did not make a prima facie showing trial
counsel's performance at the hearing was ineffective.
The trial court also concluded defendant did not establish a prima facie
claim of ineffective assistance of appellate counsel. Judge Sattely explained:
Appellate counsel is not required to raise every possible claim. The defendant's appellate counsel was initially very successful on direct appeal, leading to defendant's conviction being reversed until reaching the New Jersey Supreme Court. . . . Notwithstanding the procedural bars, the arguments fail . . . . Counsel's choice not to pursue those issues do not rise to defective representation, but a choice in their litigation strategy. The defendant was not prejudiced by counsel choosing not to raise those . . . issues. Further, appellate counsel was not ineffective in the defendant's representation on direct appeal.
In light of its conclusion that defendant did not make a prima facie case
of ineffective assistance of counsel, the trial court determined an evidentiary
hearing was not required.
This appeal followed. Defendant raises the following arguments .
POINT I
THE PCR COURT ERRED BY PROCEDURALLY BARRING DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS REGARDING THE STATE'S SPOLIATION OF EVIDENCE; THEREFORE, THIS MATTER MUST BE REMANDED FOR THE COURT TO ADDRESS THESE CLAIMS SUBSTANTIVELY.
A-2486-18T1 11 POINT II
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL['S] INEFFECTIVENESS FOR ABRIDGING HIS CONSTITUTIONAL RIGHT TO TESTIFY.
II.
The trial court relied on Rule 3:22-4 for its conclusion that several of
defendant's PCR claims were barred. The rule provides, in relevant part:
(a) First Petition for Post-Conviction Relief. Any ground for relief not raised in the proceeding resulting in the conviction . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at a hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice . . . .
A ground could not reasonably have been raised in a prior proceedings only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.
A-2486-18T1 12 [R. 3:22-4.]
To the extent that defendant raised the spoliation of evidence and lack of
an adverse inference instruction as independent substantive claims in his PCR
petition, we agree with the trial court that those claims are barred by Rule 3:22-
4(a). Each of those arguments could have been, but were not, raised by
defendant in his direct appeal.
To the extent defendant characterizes those claims as ineffective
assistance of trial counsel, a different analysis obtains. "Post-conviction relief
is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose,
129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a defendant is entitled to post-
conviction relief if there was a "[s]ubstantial denial in the conviction
proceedings of defendant's rights under the Constitution of the United States or
the Constitution or laws of the State of New Jersey . . . ." "A petitioner must
establish the right to such relief by a preponderance of the credible evidence."
Preciose, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide
the court with an adequate basis on which to rest its decision" must be
articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
A-2486-18T1 13 right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland,
and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
Under Strickland, a defendant first must show that his or her attorney
made errors "so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient performance
prejudiced the defense." Id. at 687. A defendant must establish that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in the outcome"
of the trial. Ibid. "[A] court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89,
261 (1997). "If it is easier to dispose of an ineffectiveness claim on the ground
A-2486-18T1 14 of lack of sufficient prejudice, which we expect will often be so, that course
should be followed." Strickland, 466 U.S. at 697.
A hearing on a PCR petition is required only when: (1) a defendant
establishes a prima facie case in support of PCR; (2) the court determines that
there are disputed issues of material fact that cannot be resolved by review of
the existing record; and (3) the court determines that an evidentiary hearing is
required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013)
(citing R. 3:22-10(b)). "A prima facie case is established when a defendant
demonstrates 'a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed o n
the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
The record supports the trial court's conclusion that defendant did not
establish a prima facie case of ineffective assistance of trial counsel. Trial
counsel raised the issue of spoliation in his opening statement and summation.
The jury, therefore, was apprised of defendant's claims that the State failed to
collect and maintain evidence that may have proven helpful to defendant.
In addition, trial counsel's failure to request an adverse inference charge
based on spoliation did not harm defendant. When determining whether the
spoliation of evidence resulted in denial of a criminal defendant's due process
A-2486-18T1 15 rights, the court must consider: (1) whether there was bad faith or connivance
on the part of the government; (2) whether the evidence was sufficiently material
to the defense; and (3) whether defendant was prejudiced by the loss or
destruction of evidence. State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.
1985); see also United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000) (holding
that adverse inference charge requires finding of bad faith conduct by the
government).
Evidence is material if it possessed an exculpatory value that was apparent
before it was destroyed. California v. Trombetta, 467 U.S. 479, 489 (1984).
The evidence must be expected to play a significant role in the defense and be
of such a nature that the defendant would be unable to obtain comparable
evidence by any other reasonably available means. Arizona v. Youngblood, 488
U.S. 51, 58 (1988); Trombetta, 467 U.S. at 489; State v. Marshall, 123 N.J. 1,
109 (1991).
The record contains no evidence of bad faith on the part of police or the
prosecutor. Nor has defendant demonstrated that the evidence he alleges to have
been destroyed would have been exculpatory. There was, therefore, no
justification for an adverse inference charge to the jury. See State v. Zenquis,
251 N.J. Super. 358, 370 (App. Div. 1991), aff'd, 131 N.J. 84 (1993).
A-2486-18T1 16 Furthermore, failure to give a charge must be evaluated in light of the
totality of the circumstances, including all the instructions and the arguments of
counsel. State v. Camaco, 218 N.J. 533, 551 (2014); State v. Timmendequas,
161 N.J. 515, 633-34 (1999). Given defense counsel's statements to the jury
challenging the motive of the police and prosecutors, and attacking the quality
of their investigation, the jury likely considered defendant's claim of spoliation
during its deliberations.
We reach the same conclusion with respect defendant's claim of
ineffective assistance of appellate counsel. Defendant must demonstrate that
appellate counsel's representation fell below an objective standard of
reasonableness and that, but for unprofessional errors, the result on appeal would
have been different. State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div.
2007). The court must take into account that matters of appellate strategy lie
within the discretion of appellate counsel, who is not required to raise every
colorable claim on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983); Gaither,
396 N.J. Super. at 515-16. Failing to raise an argument on appeal which would
not have been successful cannot constitute ineffective assistance of appellate
counsel. State v. Warlock, 117 N.J. 596, 625 (1990).
A-2486-18T1 17 As noted by the trial court, defendant's appellate counsel made the
strategic decision to focus on arguments determined to have the greatest
potential to succeed. The fact that appellate counsel achieved a reversal of
defendant's convictions before this court is evidence of effectiveness, even if the
Supreme Court later reversed our decision. Defendant did not make a prima
facie showing that appellate counsel was ineffective for not advancing
arguments based on spoliation, which we noted above would have limited
application here, on appeal.
The record also supports the trial court's conclusion that defendant did not
make a prima facie showing of ineffective assistance of trial counsel relating to
him not testifying at trial or the suppression hearing. The record contains ample
evidence establishing that defendant elected not to testify at trial. The trial court
engaged in an extensive discussion on the record with defendant and his counsel
with respect to defendant's election.
In the middle of trial, the court explored with defendant the fact that the
decision of whether or not to testify belonged to him. The court urged defendant
to discuss the decision with his counsel, who the court characterized as "very
competent." At the close of defendant's case, the court again addressed the issue
with defendant, who stated unequivocally that he understood that he had an
A-2486-18T1 18 absolute right to testify and that, after consultation with counsel, he had elected
not to. The record demonstrates that defendant decided not to testify after being
advised by counsel of the hazards of cross-examination. Trial counsel's
representation on this point was not deficient.
Finally, we agree with Judge Sattely's conclusion that defendant did not
make a prima facie showing that his testimony at the suppression hearing would
have changed the outcome. Defendant argues that had he been properly advised
by counsel he would have testified that he did not feel free to leave when he
made statements to police. However, the motion judge made extensive findings
with respect to the objective circumstances surrounding defendant's voluntary
statements. See State v. O'Neal, 190 N.J. 601, 616 (2007). The motion judge
found all of defendant's statements were admissible because they were in
response to on-scene questioning, voluntarily made while defendant was not in
custody, or after defendant voluntarily offered to take a polygraph examination.
Testimony regarding defendant's subjective belief he was not free to leave would
not have changed the outcome of the suppression hearing. See State v. Bey, 161
N.J. 233, 271-72 (1999) (holding that to meet the two-prong Strickland test
defendant would have to show that had he testified, the result of the hearing
would have been different).
A-2486-18T1 19 To the extent we have not specifically addressed any of defendant's
remaining contentions, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-2486-18T1 20