STATE OF NEW JERSEY VS. CECILIA X. CHEN (06-04-0739, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3816-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CECILIA X. CHEN,
Defendant-Appellant.
____________________________
Submitted December 14, 2017 – Decided September 6, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
06-04-0739.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kisha M. Hebbon, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa
Sarnoff Gochman, Legal Assistant, of counsel
and on the brief).
PER CURIAM
Defendant Cecilia X. Chen appeals from the February 16, 2016
Law Division order denying her petition for post-conviction relief
(PCR) without an evidentiary hearing. On appeal, defendant raises
the following contentions:
POINT I:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR [PCR] WITHOUT AFFORDING HER AN
EVIDENTIARY HEARING TO DETERMINE THE MERITS
OF HER CONTENTION THAT SHE WAS DENIED THE
RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A.[1] TRIAL COUNSEL RENDERED
INEFFECTIVE LEGAL REPRESENTATION BY
VIRTUE OF HIS FAILURE TO REQUEST THE
DISMISSAL OF THE INDICTMENT BASED
UPON THE STATE'S FAILURE TO PRESERVE
BLOOD AND FOOTPRINT EVIDENCE, TO
OBJECT TO THE STATE'S USE OF OTHER
EVIDENCE OBTAINED FROM THE SCENE,
AND TO REQUEST AN "ADVERSE
INFERENCE" [SPOLIATION] JURY
INSTRUCTION.
B. APPELLATE COUNSEL RENDERED
INEFFECTIVE LEGAL REPRESENTATION BY
VIRTUE OF HIS FAILURE TO RAISE THE
ISSUE REGARDING THE STATE'S FAILURE
TO PRESERVE EVIDENCE ON DIRECT
APPEAL.
C. DEFENDANT IS ENTITLED TO A REMAND
TO THE TRIAL COURT TO AFFORD HER AN
EVIDENTIARY HEARING TO DETERMINE
THE MERITS OF HER CONTENTION THAT
SHE WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL AND APPELLATE
COUNSEL.
Having considered the arguments and applicable law, we affirm.
1
We have consolidated parts A and B of defendant's argument for
clarity.
2 A-3816-15T1
We incorporate herein the facts set forth in State v. Chen,
402 N.J. Super. 62 (App. Div. 2008), in which we remanded
defendant's 2007 convictions for attempted murder, aggravated
assault, and related weapons offenses, and her ten-year prison
sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
We directed the trial court to conduct a hearing on the
admissibility of the identification evidence admitted at
defendant's jury trial and indicated that "[i]f the trial court
conclude[d] that the evidence [was] admissible under the standards
described [in our opinion], the convictions [were] affirmed."
Chen, 402 N.J. Super. at 86-87. Otherwise, "the convictions [would
be] reversed and a new trial . . . held without the unreliable
evidence." Id. at 87.
We also incorporate the facts set forth in State v. Chen, 208
N.J. 307, 327 (2011), wherein our Supreme Court affirmed our
decision remanding the case to the trial court, but modified our
approach "to assess the admissibility of identification evidence
when there is suggestive behavior but no police action." On the
remand, the trial court determined that the victim's
identification was properly admitted and entered an order
upholding defendant's convictions. We affirmed that determination
in State v. Chen, No. A-2710-11 (App. Div. Aug. 20, 2013), and the
3 A-3816-15T1
Supreme Court denied defendant's petition for certification.
State v. Chen, 217 N.J. 295 (2014).
The convictions stemmed from defendant brutally attacking and
stabbing the pregnant wife of her ex-boyfriend, after duping the
victim to gain access to her home. The victim, who had never seen
her attacker before, fought back, and both women ended up outside,
where a neighbor heard the victim's screams, observed the fighting,
and called the police. When the neighbor ran to the victim's aid,
the attacker fled.
Although the police were unable to locate the attacker, they
recovered a blood drop in the snow just outside the front door of
the victim's house and boot prints in the snow around the blood
drop. However, the bloodstained snow melted before it could be
analyzed, and the police did not attempt to identify the boot
prints because of all the people who responded and trampled the
crime scene. Nonetheless, the victim told police she did not
believe she had injured her attacker or caused her to bleed.
The investigation ultimately targeted defendant based on a
telephone conversation three days earlier between defendant and
the victim's husband, during which defendant expressed regret over
their break up several years prior. The victim later identified
defendant as her attacker from a photo array, after her husband
made the suggestion and showed her photographs of defendant from
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her personal website.2 The neighbor also identified defendant as
the attacker from a photo array, after viewing a composite sketch
of the attacker in the newspaper.
With defendant's consent, police searched defendant's home
and car. From the search of her car, police recovered a piece of
paper bearing the victim's phone number. From the search of her
home, police recovered clothing matching the description provided
by the victim. A coworker of defendant also confirmed that
defendant wore black eyeglasses similar to a pair recovered from
the crime scene. At trial, defendant admitted calling the victim's
husband three days before the attack because she felt badly about
the breakup, but denied leaving her home in Maryland to come to
New Jersey on the date in question to attack the victim.
In her timely PCR petition, defendant argued, among other
things, that her trial attorney was ineffective for not moving to
dismiss the indictment because of the State's failure to preserve
crime scene evidence, namely, the bloodstained snow and boot
prints. She argued further that her trial attorney was ineffective
for not requesting an adverse inference jury instruction based on
the spoliation of the evidence. She also argued that her appellate
2
The reliability of the victim's identification following these
actions by a private party were the focus of the appellate
litigation.
5 A-3816-15T1
counsel was ineffective for failing to raise the spoliation issue
on her direct appeal.
Following oral argument, without conducting an evidentiary
hearing, the PCR court denied defendant's petition in a February
16, 2016 written opinion. First, Judge Ronald L. Reisner
determined that "defendant's arguments regarding spoliation of
evidence [were] procedurally barred" because "[t]here [was]
sufficient evidence in the trial record . . . such that counsel
could have raised these issues on direct appeal." Thus, the judge
concluded that "defendant's claims of spoliation and consequential
issues" were "barred under [Rule] 3:22-4."3
Nonetheless, the judge addressed the merits. Applying
Strickland v. Washington, 466 U.S. 668 (1984), State v. Fritz, 105
N.J. 42 (1987), and Rule 3:22-10(b), the judge determined that
3
Rule 3:22-4(a) bars any ground for relief not raised in a prior
proceeding unless the court 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 . . . would
result in fundamental injustice; or
(3) that denial of relief would be contrary
to a new rule . . . under either the
Constitution of the United States or the State
of New Jersey.
6 A-3816-15T1
defendant failed to establish a prima facie case of ineffective
assistance of counsel on any of the grounds raised to warrant an
evidentiary hearing or PCR. The judge explained that "defendant
offer[ed] only conclusory statements asserting that [trial]
counsel was ineffective for not properly addressing the spoliation
of evidence at the trial" or "request[ing] an adverse jury
instruction." Further, "[d]efendant [had] not demonstrated that
her appellate counsel performed deficiently because he failed to
raise these issues on direct appeal."
The judge stated that defendant neither "explain[ed] how this
conduct . . . fell below an objective standard of reasonableness"
nor "demonstrate[d] how the result of the proceedings would have
been different." Rather, defendant only asserted "that this
evidence could have been helpful to her defense. However,
according to the judge, counsel's performance was not deficient
because "[t]he arguments with respect to the snow and boot print
evidence were not . . . sufficiently material to the defense of
innocence or third party guilt, or even reasonable doubt" and
"trial counsel did indeed address this evidence in summations to
the jury." Thus, "[t]he jury . . . did consider these arguments
and rejected them."
Further, in rejecting defendant's claims, the judge
explained:
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There [was] no evidence whatsoever that the
perpetrator of the attack . . . was cut or
bleeding, therefore the blood in the snow was
not that of the attacker. Moreover, even if
all the footprints would have been
photographed or retained, given the number of
individuals who arrived at the crime scene,
there would be no way to connect any of the
footprints to the shoes worn by the attacker
as no shoes were ever located or seized for
any comparative tests.
Turning to the prejudice prong, the judge concluded that
"defendant [had] not proffered sufficient proof that prior
counsel's failure to address the spoliation of evidence would have
prejudiced the defendant" because the trial court "would have
likely denied a motion to dismiss the indictment and reject[ed]
the adverse inference charge." Further, had the jury "been
instructed as to the spoliation," they "could have still rejected
the adverse inference and reached the same conclusion that they
did." Moreover, "it [was] doubtful that the jury's verdict would
have been different given the overwhelming evidence supporting the
conviction."
As to appellate counsel, citing Harrington v. Richter, 562
U.S. 86, 90 (2011), the judge pointed out that "[i]t [was]
difficult to establish ineffective assistance when counsel's
overall performance indicates active and capable advocacy." The
judge found that "[h]ere, appellate counsel's overall
performance . . . indicate[d] capable advocacy" because "[h]is
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post-conviction representation of defendant was so successful that
the New Jersey Supreme Court [had] . . . recognized the need for
a 'Chen[4] hearing' to address whether 'eyewitness identifications
tainted by private suggestive procedures' are admissible." The
judge entered a memorializing order, and this appeal followed.
On appeal, defendant argues she established "a prima facie
case that trial counsel's failure to request the dismissal of the
indictment based upon the State's failure to preserve blood and
footprint evidence, . . . failure to object to the State's use of
other evidence obtained from the scene,[5] . . . failure to request
an 'adverse inference' spoliation jury instruction," as well as
"appellate counsel's failure to raise these issues on direct appeal
constituted ineffective assistance of counsel in violation of the
state and federal constitutions." Defendant asserts a remand is
necessary for an "evidentiary hearing . . . to further
substantiate these claims." We are not persuaded by any of these
arguments and affirm substantially for the reasons expressed by
Judge Reisner in his comprehensive written opinion. We add only
the following brief comments.
4
Chen, 208 N.J. at 311.
5
Because defendant presents no legal argument to support this
contention, she has effectively waived this argument on appeal.
See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super.
501, 506 n.2 (App. Div. 2015).
9 A-3816-15T1
Even if defendant's claims were not procedurally barred, the
mere raising of a claim for PCR does not entitle the defendant to
an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only
if the defendant has presented a prima facie claim of ineffective
assistance of counsel, material issues of disputed fact lie outside
the record, and resolution of the issues necessitates a hearing.
R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). We
review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992).
To establish a prima facie claim of ineffective assistance
of counsel, the defendant must meet the Strickland-Fritz two-prong
test. Specifically, the defendant must establish both that: (l)
counsel's performance was so deficient as to "[fall] below an
objective standard of reasonableness"; and (2) the defect in
performance prejudiced defendant's rights to a fair trial such
that there exists a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 688, 694.
Claims of ineffective assistance of appellate counsel are
guided by the same principles. State v. Morrison, 215 N.J. Super.
10 A-3816-15T1
540, 546 (App. Div. 1987). In addition, an appellate attorney is
not ineffective for failing to raise every issue imaginable. State
v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007). Rather,
appellate counsel is afforded the discretion to construct and
present what he or she deems are the most effective arguments in
support of their client's position. Id. at 516.
"[I]n order to establish a prima facie claim, [the defendant]
must do more than make bald assertions that [s]he was denied the
effective assistance of counsel. [She] must allege facts
sufficient to demonstrate counsel's alleged substandard
performance." Cummings, 321 N.J. Super. at 170. Indeed, the
defendant must establish, by a preponderance of the credible
evidence, that she is entitled to the requested relief. State v.
Nash, 212 N.J. 518, 541 (2013).
We conclude from our review of the record that defendant
failed to make a prima facie showing of ineffective assistance of
counsel under the Strickland-Fritz test, and we discern no abuse
of discretion in the denial of defendant's PCR petition without
an evidentiary hearing.
Affirmed.
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