STATE OF NEW JERSEY VS. KEVIN WRIGHT(06-08-1412, BERGEN COUNTY AND STATEWIDE) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-0791-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN WRIGHT,
Defendant-Appellant.
_______________________________________________________________
Submitted June 6, 2017 – Decided August 7, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
06-08-1412.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lee March Grayson, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Suzanne E. Cevasco,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Kevin Wright appeals from the May 12, 2015 Law
Division order denying his first petition for post-conviction
relief (PCR). The PCR judge denied the petition without first
conducting an evidentiary hearing. We affirm.
I.
A Bergen County jury returned an indictment charging
defendant with first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(2)(c) (count one); second-degree aggravated sexual
contact, N.J.S.A. 2C:14-3(a) (count two); third-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and
fourth-degree child abuse under N.J.S.A. 9:6-3 (count four). The
charges, which occurred at defendant's home, arose out of
defendant's sexual assault of the teenaged daughter of the woman
with whom he had a dating relationship. Defendant, on occasion,
cared for the victim and her sister while their mother was at
work. The three of them also occasionally slept at defendant's
home.
Defendant pled not guilty to the charges and proceeded to
trial. The jury acquitted defendant of the first-degree aggravated
sexual assault charge, but convicted him of two counts of third-
degree aggravated sexual contact. The jury also convicted
defendant of the endangerment charge and child abuse. The court
sentenced defendant to a five-year probationary term, conditioned
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upon concurrent 250-day custodial sentences on each conviction,
at the Bergen County Jail. The court additionally imposed
community supervision for life, pursuant to Megan's Law, N.J.S.A.
2C:7-2, as well as the requisite fines and penalties.
Defendant filed a direct appeal challenging the trial court's
evidentiary rulings on fresh complaint evidence and the
admissibility of the victim's prior statement to her uncle.
Defendant also alleged reversible error in the court's failure to
give the appropriate limiting instructions on the fresh complaint
testimony and the repeated references to his incarcerated status.
Additionally, defendant claimed reversible errors in the court's
jury instructions. Finally, defendant alleged that his trial
counsel was ineffective in failing to object to the trial court's
failure to properly charge the jury on fresh complaint or to
request a limiting instruction on the fact that the jury had been
made aware of defendant's incarceration. In an unpublished
opinion, we affirmed defendant's conviction. State v. Wright,
Docket No. A-1470-08 (App. Div. Sept. 1, 2011) (slip op. at 8).
Defendant filed a pro-se PCR petition, alleging ineffective
assistance of trial counsel in failing to proffer evidence showing
the victim's motive. The court subsequently appointed counsel to
represent him. Assigned counsel filed a brief on behalf of
defendant, urging that the trial court denied defendant his right
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to a fair trial due to its improper charges to the jury, defendant
was provided ineffective assistance of counsel, the cumulative
effect of the errors about which defendant complained rendered his
trial unfair, defendant was entitled to an evidentiary hearing,
and post-conviction relief should not be denied to him based upon
any procedural considerations.
In an oral opinion the PCR court found that based upon a
review of the record, it was clear defense counsel "was aware of
the right to include the fresh complaint charge within the jury
charges[,]" and that "counsel made a strategic decision not to
include the fresh complaint charge." In addition, the PCR court
noted that had it found that trial counsel had been ineffective,
defendant would not be entitled to post-conviction relief because
he failed to demonstrate that but for trial counsel's deficient
performance, the outcome of the trial would have been different
had the proper instruction been included.
Addressing defense counsel's failure to request a limiting
instruction regarding the repeated references during the trial to
defendant's incarceration, the PCR court determined that defense
counsel made the strategic choice to use his incarcerated status
to the defendant's advantage, putting forth evidence before the
jury that the victim's mother visited defendant in jail and
assisted in posting defendant's bail, implying that such conduct
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on the part of the victim's mother was inconsistent with the mother
believing her daughter's allegations.
Finally, the PCR court determined that defendant was not
entitled to an evidentiary hearing because he failed to raise
genuinely disputed issues warranting a hearing. The present
appeal followed.
On appeal defendant raises the following arguments for our
consideration:
POINT I: THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE CASE
REMANDED FOR A FULL EVIDENTIARY HEARING
BECAUSE THE DEFENDANT MADE A PRIMA FACIE
SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL
UNDER THE STRICKLAND/FRITZ TEST.
A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE
DID NOT REQUEST A JURY CHARGE ON THE
FRESH COMPLAINT TESTIMONY.
B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE
DID NOT REQUEST A LIMITING INSTRUCTION
REGARDING THE DEFENDANT'S INCARCERATION.
C. THE PCR COURT ERRED BY NOT GRANTING AN
EVIDENTIARY HEARING.
II.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,
593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
It is well-settled that to set aside a
conviction based upon a claim of ineffective
assistance of counsel, a petitioner must
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prove, by a preponderance of the evidence,
that (1) counsel performed deficiently, and
made errors so serious that he or she was not
functioning as counsel guaranteed by the Sixth
Amendment; and (2) defendant suffered
prejudice as a result. Strickland v.
Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698
(1984); [] Preciose, [supra,] 129 N.J. [at]
459 (reciting preponderance of the evidence
standard of proof); State v. Fritz, 105 N.J.
42, 58 (1987) (adopting Strickland standard).
[State v. L.A., 433 N.J. Super. 1, 13 (App.
Div. 2013).]
New Jersey has adopted Strickland's two-prong test. Fritz, supra,
105 N.J. at 58.
Under the first prong of the Strickland test, a defendant
must demonstrate "counsel's representation fell below an objective
standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80
L. Ed. 2d at 693. This requires a showing that counsel was so
deficient, "counsel was not functioning as the counsel guaranteed
by the Sixth Amendment. . . ." State v. Gaitan, 209 N.J. 339,
349-50 (2012) (citation and internal quotation marks omitted),
cert. denied, 568 U.S. 1192, 133 S. Ct. 1454, 185 L. Ed. 2d 361
(2013). Thus, "[t]his test requires [a] defendant to identify
specific acts or omissions that are outside the wide range of
reasonable professional assistance . . . ." State v. Jack, 144
N.J. 240, 249 (1996) (citation and internal quotation marks
omitted). "The test is not whether defense counsel could have
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done better, but whether he [or she] met the constitutional
threshold for effectiveness." State v. Nash, 212 N.J. 518, 543
(2013).
To meet the second prong, "[a] defendant must show that there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698. "A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Ibid. A defendant must
affirmatively prove prejudice to the defense. Id. at 693, 104 S.
Ct. at 2067, 80 L. Ed. 2d at 697. Unless a defendant satisfies
both prongs, "it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders the result
unreliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A PCR analysis is conducted with "a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance[.]" State v. Arthur, 184 N.J. 307, 319
(2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at
2065, 80 L. Ed. 2d at 694-95). Furthermore, trial strategy
failure alone is an insufficient basis to assert ineffective
assistance of counsel. State v. Bey, 161 N.J. 233, 251 (1999)
(holding that "[m]erely because a trial strategy fails does not
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mean that counsel was ineffective"), cert. denied, 530 U.S. 1245,
120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).
Moreover, a defendant is not automatically entitled to an
evidentiary hearing to address his contentions by simply raising
a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div.) (citing Preciose, supra, 129 N.J. at 462), certif. denied,
162 N.J. 199 (1999). An evidentiary hearing 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) (quoting R. 3:22-10(b)); see also R. 3:22-10.
"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 on the merits.'" Porter, 216
N.J. at 355 (quoting R. 3:22-10(b)). In other words, there are
"material issues of disputed fact which cannot be resolved by
reference to the existing record." State v. Pyatt, 316 N.J. Super.
46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). Mere
bald assertions are not enough. Cummings, supra, 321 N.J. Super.
at 170.
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Defendant argues that the trial counsel's failure to request
limiting instructions on the fresh complaint testimony and the
fact of his incarceration following his arrest constituted
ineffective assistance of counsel. We reject these contentions
in both instances, although for different reasons.
We first address the absence of the limiting instruction on
the use of fresh complaint evidence. Defendant claims that "the
jury may have viewed the fresh complaint evidence as corroborative
of the [victim's] testimony, resulting in the defendant's
conviction." The fresh complaint doctrine "allows the admission
of evidence of a victim's complaint of sexual abuse, otherwise
inadmissible as hearsay, to negate the inference that the victim's
initial silence or delay indicates that the charge is fabricated."
State v. R.K., 220 N.J. 444, 455 (2015).
Statements qualify as fresh complaint evidence if they are
"made spontaneously and voluntarily, within a reasonable time
after the alleged assault, to a person the victim would ordinarily
turn to for support." Ibid. However, evidence and facts elicited
from such testimony are "not to be used 'to corroborate the
victim's allegations concerning the crime.'" Id. at 456 (quoting
State v. Bethune, 121 N.J. 137, 146 (1990)). Rather, only the
bare minimum facts "to identify the subject matter of the
complaint" are admitted. Ibid. Thus, courts are "required to
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charge the jury that fresh[]complaint testimony is not to be
considered as substantive evidence of guilt, or as bolstering the
credibility of the victim; it may only be considered for the
limited purpose of confirming that a complaint was made." Ibid.
The trial court inquired of defense counsel whether counsel
would be making a fresh complaint argument during summation.
Defense counsel responded, "No judge." Hence, as the PCR judge
observed, "it seems clear defense counsel was aware of the right
to include the fresh complaint charge within the jury charges."
The PCR judge then concluded, as the State urged, the decision not
to include a fresh complaint charge in the jury instructions was
a strategic decision.
During oral argument before the PCR judge, the State urged
that the decision not to seek a limiting instruction was strategic
because defense counsel spent a lot of time during cross-
examination of the uncle inquiring about what the uncle did after
his niece confided in him and that the uncle testified that he
went away for the weekend. The State argued that defense counsel
used this testimony to attack the victim's credibility and, under
those circumstances,
[w]hy then ask for a limiting instruction
later that's only going to remind the jury oh,
by the way, this testimony could hurt the
defendant, when you already damaged the
State's witness. You already helped the
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defendant with this testimony. It's all
strategic. And we don't need the testimony
of defense counsel to then say well, yeah, it
was strategic.
PCR counsel urged that resolution of this issue called for
an evidentiary hearing and to resolve this issue without such
hearing would, in essence, "be doing the very thing the Appellate
Division has already opined can't be done[.]"
In our review of the record, it is not apparent that the
failure to request a limiting instruction at the time the victim's
uncle testified or as part of the court's final instructions to
the jury was a strategic decision by defense counsel. As PCR
counsel noted before the PCR judge, this issue was raised in
defendant's direct appeal and we declined to address it because
it implicated matters outside of the record. See State v. Wright,
supra, Docket No. A-1470-08 (App. Div. Sept. 1, 2011) (slip op.
at 15). The PCR judge determined that this was a strategic
decision on the part of defense counsel, but did so without the
benefit of any additional evidence, e.g., a certification from
trial counsel or testimony from trial counsel. In the absence of
such additional evidence, we decline to draw such an inference.
Thus, we assume defendant has satisfied the first prong under
Strickland, namely, that the failure to request the limiting
instruction on fresh complaint did not reflect the exercise of
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reasonable professional judgment. Strickland, supra, 466 U.S. at
690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
As the record reveals, however, during his testimony,
defendant acknowledged that he occasionally cared for the victim
and her sister while their mother worked. He was doing so on the
evening of the incident. Defendant denied telling police during
questioning that he laid down next to the victim, during which his
erect penis rubbed up against her. As we concluded in our
unpublished opinion, this evidence, if credited by the jury,
"constituted compelling evidence of each of the offenses for which
he was convicted[,]" independent of the fresh complaint evidence.
State v. Wright, supra, Docket No. A-1470-08 (App. Div. Sept. 1,
2011) (slip op. at 13). Consequently, there is no reasonable
probability that but for trial counsel's failure to request the
limiting instruction, the result of the trial would have been
different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698.
We turn to defendant's contentions that he was prejudiced by
the numerous references throughout the trial to his incarcerated
status and that his counsel's failure to request a limiting
instruction constituted ineffective assistance of counsel. We
disagree.
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In his opening statement, defense counsel advised the jury
that it would hear testimony that the victim's mother never
believed her daughter's allegations against defendant. Defense
counsel presented evidence that the victim's mother visited
defendant while incarcerated, assisted in posting his bail, and
continued to date him and support him against the charges until
defendant started dating another woman. The PCR judge reasoned
that although counsel initially objected to the State's line of
questioning, which included a reference to defendant's
incarcerated status, defense counsel "capitalized on any
references of defendant being in the county jail[,]" and "used
this to his advantage[.]" We agree.
Here, the references to defendant's incarceration could
hardly be deemed surprising to the jury as they knew he had been
arrested and charged with the crimes. Moreover, defense counsel
ably used his own references to defendant's incarceration to show
that the victim's mother continued to support defendant, and only
believed the victim's allegations after defendant had been
released from prison and dating another woman. This usage
demonstrates a strategic trial decision, one that is not
incompetent or unreasonable. In addition, even if defense counsel
had been unreasonable, defendant fails to show how the verdict
would have been different.
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Finally, the PCR judge found that an evidentiary hearing was
not warranted, concluding that defendant failed to present a prima
facie case of ineffective assistance of counsel. We agree.
Neither defense counsel's failure to request a limiting
instruction on the fresh complaint testimony nor references
throughout the trial to defendant's incarcerated status, prior to
making bail, raise materially disputed facts that but for these
omissions the outcome of the trial for defendant would have been
different. Therefore, the court did not abuse its discretion in
declining to conduct an evidentiary hearing.
Affirmed.
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