STATE OF NEW JERSEY VS. CHARLES E. LUCAS (15-07-0808, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-0843-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES E. LUCAS,
Defendant-Appellant.
_______________________
Submitted September 20, 2021 – Decided November 22, 2021
Before Judges Fasciale and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-07-
0808.
Vincent J. Sanzone, Jr., attorney for appellant.
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Charles E. Lucas filed a post-conviction relief (PCR) petition
challenging his conviction for first-degree aggravated sexual assault of a
physically helpless victim, N.J.S.A. 2C:14-2(a)(7). Defendant claimed he had a
sexual relationship with his trial counsel, and, as a result, she had a per se
conflict of interest requiring PCR. He also claimed counsel became angry with
him after she discovered he had relationships with other women, and, as a result
of that anger, she failed to provide effective assistance of counsel during trial.
He appeals from the PCR court's denial of his petition without an evidentiary
hearing. Based on our review of the record and the applicable legal princi ples,
we affirm.
I.
We summarized the trial record in our opinion affirming defendant's
conviction on direct appeal, see State v. Lucas, A-4015-15 (App. Div. July 9,
2018) (slip op. at 3-7). We restate portions of that summary, and facts gleaned
from the PCR record, to provide context for defendant's arguments on appeal.
A grand jury charged defendant in a 2013 indictment with violating
N.J.S.A. 2C:14-2(a)(7) by committing an act of sexual penetration on K.H.
A-0843-20
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(Kate), who defendant knew or should have known was physically helpless. 1 Id.
at 2. The State's theory at trial was that defendant vaginally penetrated Kate
while she was intoxicated and physically helpless. Id. at 3.
The evidence showed Kate and two friends, F.H. (Fae) and defendant's
girlfriend N.H. (Nancy), went to a club at 11:00 p.m. to celebrate Kate's
birthday. Ibid. Kate testified that prior to going to the club, she had three drinks
at Nancy's apartment. Once at the club, Kate drank mixed vodka drinks. Ibid.
She testified she stopped counting the number of drinks she had at the club after
her fourth or fifth, but also testified she "had only three drinks" at the club. Ibid.
After leaving the club, Kate went to Nancy's apartment, but Kate testified
she "had no recollection of how she got there because she was 'too drunk.'" Id.
at 3-4. Kate recalled only that when she arrived at the apartment with Fae and
1
We use initials and pseudonyms to identify the victim, and some of the
witnesses and individuals who were with the victim during the evening prior to,
and morning of, the incident to protect the victim's privacy and because her
identity is excluded from public access under Rule 1:38-3(c)(12). We also note
that the original indictment charged defendant with a single count of violating
N.J.S.A. 2C:14-2(a)(7). Lucas, slip op. at 7. A superseding indictment returned
just before defendant's trial added three additional charges, but those charges
were severed, and defendant proceeded to trial on the count alleging a violation
of N.J.S.A. 2C:14-2(a)(7). Ibid. We do not address the disposition of the other
charges because defendant's PCR petition challenges only his conviction for
violating N.J.S.A. 2C:14-2(a)(7).
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Nancy, they woke her up when the car door opened, and she almost fell to the
ground. Id. at 4. Kate required her friends' assistance to exit the car and climb
the steps to Nancy's apartment. Ibid.
Kate had some recollection of her friends' attempts to wake her in the
apartment for birthday cake. Ibid. She also recalled pushing away someone
who attempted to kiss her on the lips. Ibid. She testified she could not otherwise
recall what occurred in the apartment because she was "extremely drunk" and
"couldn't function, couldn't stand up. Couldn't do anything for [her]self or by
[her]self." Ibid.
Kate recalled waking the next morning and hearing Nancy and defendant
arguing. Ibid. Kate had on the same dress she had worn the prior evening, but
she was not wearing underwear. Ibid. When Nancy briefly left the apartment
to go to her car, defendant told Kate that "he had sex with her but he did not
want [Nancy] to know." Ibid. "[Kate] testified she had no recollection of having
sex with defendant because she was 'passed out drunk on the couch.'" Ibid. She
reported the incident to the police that morning, and a test later "revealed the
presence of defendant's sperm in [her] vagina." Id. at 5.
Fae testified Kate drank at the club and "was 'off balance' and 'stumbling
a little bit' when she danced." Ibid. According to Fae, Kate needed assistance
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getting to the car when they left the club at about 1:45 a.m., and K ate needed
assistance climbing the steps to Nancy's apartment. Ibid. Fae testified Kate fell
asleep on a couch in the apartment and later needed the assistance of two friends
to use the bathroom, and went back to sleep before Fae left the apartment
between 3:30 a.m. and 4:00 a.m. Id. at 5-6.
N.G. (Nell) was also present at the club, where she observed that Kate was
"extremely intoxicated," "incoherent," and required the assistance of "others
because she could barely . . . walk or stand on her own." Ibid. Nell drove
separately to Nancy's apartment and found Kate asleep on the couch when she
arrived. Ibid.
Nell spent the night sleeping on the floor next to the couch. Ibid. When
she awoke at around 6:00 a.m., "it appeared defendant was having sex with
someone on the couch who appeared to be asleep." Ibid. Nell told defendant to
stop and he "[e]ventually . . . did." Ibid. When defendant went into Nancy's
bedroom, Nell noticed Kate was the person on the couch. Ibid. Nell observed
that Kate was "motionless" with her "face . . . down, her dress pulled up, and
her bare buttocks exposed in the air." Id. at 7. Nell pulled Kate's dress down to
cover her while Kate remained motionless on the couch. Ibid. Nell told Nancy
what she saw. Ibid. Nell then left the apartment. Ibid.
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Defendant did not present any witnesses at trial. The jury convicted him
of aggravated sexual assault of Kate by vaginally penetrating her when he knew
or should have known she was physically helpless. N.J.S.A. 2C:14-2(a)(7).
Following our affirmance of defendant's conviction, see Lucas, slip op. at 17,
the Supreme Court denied his petition for certification, State v. Lucas, 236 N.J.
611 (2019).
Defendant filed a PCR petition supported by his affidavit asserting he
engaged in what he characterized as an "inappropriate relationship" with his trial
counsel that began after he retained her to represent him in March 2013 on the
charge for which he was later indicted and convicted. He also asserted his trial
counsel was ineffective during her representation of him at his July 2015 trial.
More particularly, defendant asserted he agreed to pay counsel $25,000 in
installment payments to retain her services, but he and his family members paid
counsel only $2,950 during her representation of him through trial. Defendant
further averred that following the commencement of his personal relationship
with counsel in March 2013, they socialized, went out to dinner, exchanged text
pictures and messages, had personal phone calls, and had sexual relations on
four occasions, the last of which occurred in June 2015, one month before his
trial began. Defendant claimed that at some undisclosed time, counsel told him
A-0843-20
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she was pregnant with his child, and she was unsure if she intended to keep the
child. Defendant asserted he was "unsure of the validity of [that] claim."
Defendant also "submit[ted]" that a few days before trial the assistant
prosecutor representing the State gave his counsel printouts of text messages
from his phone in which he "proclaimed [his] love" for other women. Defendant
asserted his counsel confronted him about the messages "in an angered manner,
calling [him] a liar, and [accusing] him of playing her," and, at trial, counsel
"questioned [him] about every female that appeared in court on [his] behalf and
the nature of" their relationship with him. Defendant alleged that following his
conviction, his counsel took his phone, obtained the passcode to the phone from
him by stating his mother requested it, used the passcode to gain access to his
phone, and deleted text messages he and counsel had exchanged.
Defendant averred his counsel was late to court and wore inappropriate
attire during his trial. He also asserted he paid counsel $1,400 to retain a
forensic toxicologist, Gary Lage, and that counsel obtained a report from Lage
but never contacted him and failed to call him as a witness at trial. Defendant's
affidavit does not state when he paid counsel $1,400 to retain Lage, and
defendant does not assert that his counsel was ineffective by failing to timely
retain Lage or obtain Lage's report.
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The assertions in defendant's affidavit were supplemented by arguments
made on his behalf by his PCR counsel. The PCR court heard oral argument,
and, in a detailed written opinion, denied defendant's petition. This appeal
followed.
Defendant offers the following arguments for our consideration:
POINT ONE
THE TRIAL COURT ERRED BY NOT
CONSIDERING THE DIRECT AND
CIRCUMSTANTIAL EVIDENCE THAT TRIAL
COUNSEL WAS ENGAGED IN A SEXUAL AFFAIR
WITH THE DEFENDANT DURING HER
REPRESENTATION OF THE DEFENDANT.
POINT TWO
THE TRIAL COURT ERRED BY HOLDING THAT
THE STATE'S EVIDENCE AGAINST THE
DEFENDANT WAS SO STRONG THAT THE
DEFENDANT CANNOT SHOW THAT TRIAL
COUNSEL'S ERRORS WOULD HAVE MADE ANY
DIFFERENCE IN THE OUTCOME OF THE TRIAL.
POINT THREE
THE TRIAL COURT ERRED BY HOLDING THAT
TRIAL COUNSEL WAS NOT INEFFECTIVE BY
NOT REQUESTING THE AFFIRMATIVELY GIVEN
PERMISSION CHARGE.
A-0843-20
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POINT FOUR
THE TRIAL COURT ERRED IN HOLDING THAT
TRIAL COUNSEL WAS NOT INEFFECTIVE FOR
NOT CALLING ANY WITNESSES.
POINT FIVE
THE TRIAL COURT ERRED IN HOLDING THAT
DEFENSE COUNSEL WAS NOT INEFFECTIVE
FOR FAILING TO OBJECT TO THE STATE'S
STRAW-MAN "KNOWING" ARGUMENT.
POINT SIX
THE TRIAL COURT ERRED IN HOLDING THAT
DEFENSE COUNSEL WAS NOT INEFFECTIVE BY
FAILING TO PRESENT EXCULPATORY
EVIDENCE.
POINT SEVEN
THE TRIAL COURT ERRED IN HOLDING THAT
TRIAL COUNSEL WAS NOT INEFFECTIVE BY
FAILING TO CALL THE EXPERT WITNESS
REGARDING THE DISSIPATION OF ALCOHOL
WITH THE PASSAGE OF TIME.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed
questions of fact and law. Id. at 420. Where an evidentiary hearing has not been
held, it is within our authority "to conduct a de novo review of both the factual
A-0843-20
9
findings and legal conclusions of the PCR court." Id. at 421; see also State v.
Lawrence, 463 N.J. Super. 518, 522 (App. Div. 2020). We apply those standards
here.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Court
established a two-part standard, later adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been
deprived of the effective assistance of counsel. Under the standard's first prong,
a petitioner must show counsel's performance was deficient by demonstrating
counsel's handling of the matter "fell below an objective standard of
reasonableness" and that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed [to] the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687-88.
Under the Strickland standard's second prong, a defendant must
demonstrate "counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." Id. at 687. The petitioner "must show
that the deficient performance prejudiced the defense," id. at 687, by
demonstrating a "reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694.
Counsel's "error . . . must be so serious as to undermine the court's confidence
A-0843-20
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in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004)
(citing Strickland, 466 U.S. at 694).
"With respect to both prongs of the Strickland test, a defendant asserting
ineffective assistance of counsel on PCR bears the burden of proving his or her
right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J.
339, 350 (2012) (first citing State v. Echols, 199 N.J. 344, 357 (2009); and then
citing State v. Goodwin, 173 N.J. 583, 593 (2002)). A failure to satisfy either
prong of the Strickland standard requires the denial of a PCR petition.
Strickland, 466 U.S. at 700; State v. Nash, 212 N.J. 518, 542 (2013); Fritz, 105
N.J. at 52.
A claim of conflict of interest between a defendant and counsel is a type
of ineffective assistance of counsel claim. State v. Cottle, 194 N.J. 449, 467
(2008); State v. Bellucci, 81 N.J. 531, 535 (1980). "Effective counsel must
provide the client with undivided loyalty and representation that is 'untrammeled
and unimpaired' by conflicting interests." State v. Norman, 151 N.J. 5, 23
(1997) (quoting Bellucci, 81 N.J. at 538). Under the Sixth Amendment, the mere
"possibility" of a conflict of interest "is insufficient to impugn a criminal
conviction." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). To establish a Sixth
Amendment violation, "a defendant who raised no objection at trial must
A-0843-20
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demonstrate that an actual conflict of interest adversely affected his lawyer's
performance." Id. at 348.
"Our [Supreme] Court's rulings have exhibited a much lower tolerance for
conflict-ridden representation under the New Jersey Constitution than federal
courts have under the United States Constitution." Cottle, 194 N.J. at 470.
When "analyzing whether a conflict of interest has deprived a defendant of his
state constitutional right to the effective assistance of counsel, " the Court
"adhere[s] to a two-tiered approach." Id. at 467. "In those cases in which [the
Court has] found a per se conflict, prejudice is presumed in the absence of a
valid waiver, and the reversal of a conviction is mandated." Id. at 467. In a case
where no per se conflict is shown, "the potential or actual conflict of interest
must be evaluated and, if significant, a great likelihood of prejudice must be
shown . . . to establish constitutionally defective representation of counsel." Id.
at 467-68 (quoting Norman, 151 N.J.at 25).
Our Supreme Court has generally "limited the per se conflict on
constitutional grounds to cases in which 'a private attorney, or any lawyer
associated with that attorney, is involved in simultaneous dual representations
of codefendants,'" or where "both [counsel] and his [or her] client are
simultaneously under indictment in the same county and being prosecuted by
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the same prosecutor's office." Id. at 452, 467 (citation omitted). The "per se
analysis is reserved for those cases in which counsel's performance is so likely
to prejudice the accused that it is tantamount to a complete denial of counsel."
State v. Savage, 120 N.J. 594, 616 (1990). It is "only an extraordinary
deprivation of the assistance of counsel [that] triggers a presumption of
prejudice." State v. Miller, 216 N.J. 40, 70 (2013). For a conflict of interest to
trigger a per se deprivation of the right to counsel there must be an "overriding
concern of divided loyalties." Cottle, 194 N.J. at 467 n.8.
Defendant contends the court erred by rejecting his ineffective assistance
of counsel claim based on its finding that his affidavit, which described his
personal and sexual relationship with his counsel and counsel's purported anger
at learning defendant had relationships with other women, consisted of bald
assertions. "Bald assertions" are insufficient to sustain a defendant's burden of
establishing an ineffective assistance of counsel claim. State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). A PCR petition must be "accompanied
by an affidavit or certification by defendant, or by others, setting forth with
particularity," State v. Jones, 219 N.J. 298, 312 (2014), "facts sufficient to
demonstrate counsel's alleged substandard performance," ibid. (quoting State v.
Porter, 216 N.J. 343, 355 (2013)). "Even a suspicious or questionable affidavit
A-0843-20
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supporting a PCR petition 'must be tested for credibility and cannot be
summarily rejected.'" Porter, 216 N.J. at 355 (quoting State v. Allen, 398 N.J.
Super. 247, 258 (App. Div. 2008)).
Defendant's supporting affidavit includes many conclusory and bald
assertions that do not constitute competent evidence. 2 However, the affidavit
also includes assertions of fact supporting his claim he and his counsel had a
personal and sexual relationship during her representation of him. Defendant
described the nature of the relationship, when it started, and the locations and
occasions he had sexual relations with trial counsel. Defendant also described
counsel's alleged statements and reactions following her purported discovery of
defendant's relationships with other women. Those assertions constitute
statements of fact based on defendant's personal knowledge. See R. 1:6-6. The
PCR court erred by concluding otherwise.
2
For example, defendant asserted he "had a witness relevant to the case and
character witnesses that appeared to testify on [his] behalf" but he does not
identify the witnesses or provide any competent evidence in the form of an
affidavit based on personal knowledge, see R. 1:6-6, from the witnesses
establishing the information known to them that might have supported a defense
at trial. Those assertions in his supporting certification, and others like it,
constitute bald assertions because they are either conclusory or are not
statements of fact based on defendant's personal knowledge.
A-0843-20
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The PCR court was, and this court is, bound to consider defendant's
statements of fact "in the light most favorable to [him] to determine whether
[he] . . . established a prima facie [PCR] claim." Cummings, 321 N.J. Super. at
170. We therefore consider whether defendant's factual assertions support his
claim that he is entitled to PCR because his personal relationship with his
counsel resulted in a per se conflict of interest resulting in ineffective assistance
of counsel.
Our Rules of Professional Conduct (RPC) do not explicitly prohibit sexual
relationships between a lawyer and a client. See State v. Lasane, 371 N.J. Super.
151, 162 (App. Div. 2004) (noting our Supreme Court's rejection of a proposed
amendment to the RPC that would have created a rule "which would have
explicitly prohibited sexual relations between a lawyer and client unless a
consensual relationship existed prior to the creation of the lawyer-client
relationship" (citation omitted)). Nonetheless, our Supreme Court has
recognized that "sexual relationships with clients jeopardize the attorney-client
relationship and have the strong potential to involve the attorney in unethical
behavior." In re Principato, 139 N.J. 456, 460-61 (1995); see, e.g., In re
Witherspoon, 203 N.J. 343, 350 (2010) (suspending an attorney from the
practice of law for violating RPC 1.7(a)(2) "by putting 'his own prurient interests
A-0843-20
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above those of his clients [thereby] creat[ing] the possibility that he would not
view their matters favorably if his [sexual] advances were rejected '" (first and
second alterations in original) (citation omitted)).
Here, defendant's supporting affidavit describes a personal and sexual
relationship that developed after counsel started representing him. Defendant
refers to his fee arrangement with counsel and the payments made toward the
fee, but he does not aver that counsel bartered her legal services for his
participation in their sexual relationship, or that she used her position as his
counsel to exert influence over him to engage in a sexual relationship with her.
Cf. Witherspoon, 203 N.J. at 360 (noting counsel's "attempt[] to barter his
services for various sexual favors [constitutes] behavior that is plainly and
unequivocally inappropriate").
Instead, defendant's supporting affidavit describes a lengthy relationship
between two consenting adults, and his counsel's purported anger at finding he
also had relationships with other women. Thus, based on the factual assertions
supporting the PCR petition, defendant's counsel's alleged conflict of interest
arose not because of her sexual relationship with him – which he describes in
his brief on appeal as an "affair" – but because counsel became upset with
defendant when she discovered he had ongoing relationships with other women
A-0843-20
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after reviewing text messages the State obtained from defendant's phone and
supplied to counsel.3 Defendant claims his counsel had a conflict of interest
3
In his brief on appeal, defendant argues the assistant prosecutor "improperly
weaponized" the text messages obtained from defendant's phone by stating in
front of the counsel with whom defendant "was having an affair" that the
messages showed defendant had "multiple sexual relationships with multiple
women." Defendant's claim is unsupported by any evidence the assistant
prosecutor knew of defendant's and his counsel's "affair," and, therefore there is
no basis to conclude the assistant prosecutor "weaponized" the text messages to
create a conflict between defendant and his counsel. Moreover, the State was
obligated to turn over the messages because they were obtained pursuant to a
communications data warrant. See R. 3:13-3(b)(1)(A) (requiring the State to
provide defendants with all "electronically stored information, and any other
data" in post-indictment discovery). Additionally, the assistant prosecutor
referred to the text messages only during an argument before the court
concerning whether the messages could be used during the State's cross-
examination of defendant if he opted to testify at trial and said he would not
have vaginally penetrated Kate because he had a girlfriend at the time. The court
did not decide the issue, and defendant did not testify at trial. Further, the record
shows defendant's trial counsel disputed the State's characterization of the text
messages, arguing they do not show defendant had multiple sexual relationships
with various women at the same time.
Moreover, there is no evidence the text messages were from the period
during which defendant had a relationship with his counsel, and the State's
argument during the trial suggests they were not. The State argued the text
messages obtained from defendant's phone showing he had multiple ongoing
relationships with numerous women would rebut defendant's anticipated
testimony that on the date of the sexual assault, March 17, 2013, he would not
have had sexual relations with Kate because he had a girlfriend. It therefore can
be reasonably inferred the text messages – which the State represented were
gleaned from defendant's phone over only a nine-day period – were exchanged
on or about the day of the March 17, 2013 sexual assault, and not during the
period of defendant's relationship with his counsel just prior to trial. According
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because she was angry and felt personally betrayed by him. He argues this
conflict of interest requires PCR because "the attorney-client relationship
deteriorated to such a degree that trial counsel's advocacy was in serious
jeopardy," and that "it has become clear to [him] that [counsel] had a personal
hate for [him]" and "threw [his] case away because she was extremely jealous."
Defendant did not, however, provide any facts demonstrating counsel's alleged
actions resulted in ineffective assistance of counsel during trial, and defendant's
claim his counsel "threw [his] case" based on "jealousy" is a bald assertion
unaccompanied by facts supported by competent evidence.
The conflict of interest alleged by defendant does not fall within the two
classes of cases the Court has recognized establish a per se conflict of interest.
See Cottle, 194 N.J. at 452, 467. That is, defendant does not claim that his
counsel was engaged in the dual representation of co-defendants, see Norman,
151 N.J. at 24-25, or that his counsel was under indictment in the same county
to his affidavit, defendant first had sexual relations with his counsel on June 5,
2014, more than a year after the sexual assault, and his trial did not take place
until July 2015. In any event, defendant does not include the text messages in
the record on appeal, and there is no indication they were provided to the PCR
court. See R. 2:6-1(a)(1)(B) and (I) (requiring appellants to include in the
appendix on appeal "all docket entries in the proceedings below" and "such other
parts of the record . . . as are essential to the proper consideration of the issues").
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and prosecuted by the same prosecutor's office as defendant, see Cottle, 194 N.J.
at 473.
Moreover, unlike in Cottle, the conflict alleged by defendant did not
provide counsel with any incentive to curry favor with the prosecutor's office
that was prosecuting him. See Id. at 463-64, 469 n.9. Defendant also fails to
demonstrate "a significant risk" that trial counsel's representation was
"materially limited" by her "personal interest." See RPC 1.7(a)(2). Nor has
defendant demonstrated the "great likelihood of prejudice" required to "establish
constitutionally defective representation of counsel." Cottle, 194 N.J. at 467-68(citation omitted). The facts proffered by defendant simply do not demonstrate
"an extraordinary deprivation of the assistance of counsel [that] triggers a
presumption of prejudice," Miller, 216 N.J. at 70, or raise an "overriding concern
of divided loyalties," Cottle, 194 N.J. at 467 n.8; cf. Lasane, 371 N.J. Super. at
164-65. (finding ineffective assistance of counsel in part based on plea counsel's
divided loyalties where juvenile defendant pleaded guilty to felony murder at
the urging of his counsel and his mother, with whom plea counsel engaged in a
sexual relationship).
We therefore reject defendant's claim that his personal and sexual
relationship with his counsel constituted a per se conflict requiring PCR. See,
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e.g., United States v. Babbitt, 26 M.J. 157, 158-59 (C.M.A. 1988) (refusing to
adopt a per se rule that a defendant's right to the effective assistance of counsel
is violated where the defendant and her counsel had sexual intercourse while he
represented her, and rejecting defendant's ineffective assistance of counsel claim
because she did not prove her counsel was "serious[ly] incompeten[t]" or that
she was prejudiced by the representation); Hernandez v. State, 750 So. 2d 50,
55 (Fla. Ct. App. 1999) (denying PCR where the defendant's trial counsel had a
sexual relationship with the defendant's wife, but the defendant could not prove
the relationship adversely effected trial counsel's performance during trial);
Barentine v. United States, 728 F. Supp. 1241, 1252 (W.D.N.C. 1989) (finding
a potential conflict of interest when the defendant's trial counsel had a sexual
relationship with the defendant's paramour, but nevertheless determining the
defendant did not establish an ineffective assistance of counsel claim because
he did not prove prejudice), aff'd o.b., 908 F.2d 968 (4th Cir. 1990).
III.
As noted, where a defendant fails to establish a per se conflict, he or she
must demonstrate the conflict is "significant" and there is "a great likelihood of
prejudice" to establish ineffective assistance of counsel. Cottle, 194 N.J. at 467-
68 (quoting Norman, 151 N.J.at 25). Defendant contends he is entitled to PCR
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because he made a prima facie case of ineffective assistance of counsel under
the Strickland standard. See Strickland, 466 U.S. at 687-88. He argues the PCR
court erred by rejecting his various claims that his counsel's performance at trial
was constitutionally deficient and that but for his counsel's errors there is a
reasonable probability the result of his trial would have been different. See id.
at 687-88, 695. We address defendant's claims in turn. 4
A.
Defendant argues his counsel was ineffective by failing to request what
he characterizes as an "affirmatively given permission charge." Defendant
asserts it is "undisputed" that Kate's physical actions demonstrated she
"affirmative[ly] consent[ed]" to defendant's vaginal penetration of her, and that,
as a result, his counsel erred by failing to request the affirmatively-given-
permission charge.
"[A]ppropriate and proper jury charges are essential to a fair trial." State
v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553,
4
Defendant claimed before the PCR court that his counsel's performance was
constitutionally deficient in numerous and varied ways. The PCR court rejected
each of his claims. We do not address all the claims defendant made before the
PCR court, but instead limit our analysis to only the claims addressed by
defendant in his brief on appeal. See Jefferson Loan Co. v. Session, 397 N.J.
Super. 520, 525 n.4 (App. Div. 2008) (finding issues not briefed on appeal are
deemed waived).
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613 (2004)). "The trial court must give 'a comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find.'" Id. at 159 (quoting State v. Green, 86 N.J.
281, 287-88 (1981)). "Thus, the court has an 'independent duty . . . to ensure
that the jurors receive accurate instructions on the law as it pertains to the facts
and issues of each case, irrespective of the particular language suggested by
either party.'" Ibid. (alteration in original) (quoting Reddish, 181 N.J. at 613).
A "party is [not] entitled to have the jury charged in his or her own words;
all that is necessary is that the charge as a whole be accurate." State v. Jordan,
147 N.J. 409, 422 (1997). There is also a presumption of correctness in the
model jury charges. See State v. R.B., 183 N.J. 308, 325 (2005) (explaining the
trial court's obligation to deliver model charges); Mogull v. CB Com. Real Est.
Grp., Inc., 162 N.J. 449, 466 (2000) (noting "[i]t is difficult to find that a charge
that follows the Model Charge so closely constitutes plain error").
On his direct appeal, defendant argued there were errors in the jury
instructions concerning the offense charged in the indictment under N.J.S.A.
2C:14-2(a)(7). The court instructed the jury in accordance with the Model Jury
charge – Model Jury Charges (Criminal), "Aggravated Sexual Assault (Mentally
Incapacitated) (N.J.S.A. 2C:14-2(a)(7))" (rev. Feb. 6, 2012) – applicable to the
A-0843-20
22
offense for which defendant was tried. We found no error in the court's
instruction, Lucas, slip. op. at 10-11, and the court's use of a Model Jury Charge
"is a persuasive argument in favor of the charge as delivered," State v. Whitaker,
402 N.J. Super. 495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J.
Super. 79, 84 (App. Div. 2000)).
Defendant's current claim the jury instruction should have included an
affirmatively-given-permission charge, is procedurally barred because it could
been raised on direct appeal, and defendant makes no showing the PCR court's
rejection of the claim is contrary to a new rule of constitutional law. Thus, the
claim is barred under Rule 3:22-4(a)(1) to (2). See State v. Szemple, 247 N.J.
82, 98 (2021) ("Rule 3:22-4(a) bars petitions that rely on grounds that reasonably
have been – but were not – raised during direct appeal, unless an exception
applies."). The claim is also barred because defendant makes no showing that
denial of his ineffective assistance of counsel claim based on that ground for
relief – which could have been raised on defendant's direct appeal – will "result
in a fundamental injustice." R. 3:22-4(a)(2); see State v. Hannah, 248 N.J. 148,
179 (2021) (explaining "[a] fundamental injustice occurs 'when the judicial
system has denied a "defendant with fair proceedings leading to a just outcome"
A-0843-20
23
or when "inadvertent errors mistakenly impacted a determination of guilt or
otherwise wrought a miscarriage of justice"'" (quoting Nash, 212 N.J. at 148)).
Even if the claim was not procedurally barred, defendant is not entitled to
PCR under the Strickland standard because he has not demonstrated counsel's
failure to request the charge amounted to a constitutionally deficient
performance, or that the failure to include the charge prejudiced defendant.
What defendant characterizes as the affirmatively-given-permission
charge is included in the Model Jury charges for aggravated sexual assault under
N.J.S.A. 2C:14-2(a)(6).5 See Model Jury Charges (Criminal), "Aggravated
Sexual Assault—Physical Force or Coercion with Severe Personal Injury
(N.J.S.A. 2C:14-2(a)(6))" (rev. Sept. 8, 2008). The affirmatively-given-
permission charge defendant contends his counsel should have requested is as
follows:
Physical force is defined as the commission of
the act of sexual penetration without the victim's freely
and affirmatively given permission to the specific act
of penetration alleged to have occurred. You must
decide whether the defendant's alleged act of
penetration was undertaken in circumstances that led
the defendant reasonably to believe that the victim had
5
The identical affirmatively-given-permission charge is also included in the
Model Jury Charge for sexual assault under N.J.S.A. 2C:14-2(c)(1). See Model
Jury Charges (Criminal), "Sexual Assault (Force/Coercion) (N.J.S.A. 2C:14-
2(c)(1))" (rev. Jan. 24, 2005).
A-0843-20
24
freely given affirmative permission to the specific act
of sexual penetration. Simply put, affirmatively given
permission means the victim did or said something
which would lead a reasonable person to believe
[he/she] was agreeing to engage in the act of sexual
penetration, and freely given permission means the
victim agreed of [his/her] own free will to engage in the
act of sexual penetration. Freely and affirmatively
given permission can be indicated either through words
or through actions that, when viewed in the light of all
the surrounding circumstances, would demonstrate to a
reasonable person that affirmative and freely given
permission for the specific act of sexual penetration had
been given.
Persons need not, of course, expressly announce
their consent to engage in an act of sexual intercourse
for there to be affirmative permission. Permission to
engage in an act of sexual penetration can be and indeed
often is indicated through physical actions rather than
words. Permission is demonstrated when the evidence,
in whatever form, is sufficient to demonstrate that a
reasonable person would have believed that the alleged
victim had affirmatively and freely given authorization
to the act.
Proof that the act of sexual penetration occurred
without the victim's permission can be based on
evidence of conduct or words in light of surrounding
circumstances, and must demonstrate beyond a
reasonable doubt that a reasonable person would not
have believed that there was affirmative and freely
given permission. If there is evidence to suggest that
the defendant reasonably believed that such permission
had been given, the State must demonstrate beyond a
reasonable doubt either that the defendant did not
actually believe that such permission had been freely
A-0843-20
25
given, or that such a belief was unreasonable under all
of the circumstances.
In determining the reasonableness of defendant's
belief that the victim had freely given affirmative
permission, you must keep in mind that the law places
no burden on the alleged victim to have expressed non-
consent or to have denied permission. You should not
speculate as to what the alleged victim thought or
desired or why [he/she] did not resist or protest. The
State is not required to prove that the victim resisted.
[Model Jury Charges (Criminal), "Aggravated Sexual
Assault—Physical Force or Coercion with Severe
Personal Injury (N.J.S.A. 2C:14-2(a)(6))" (rev. Sept. 8,
2008) (footnote omitted).]
This language in the charge for an offense under N.J.S.A. 2C:14-2(a)(6)
is employed for a singular purpose: it defines an essential element of that crime
– "physical force." 6 Ibid. In State in Interest of M.T.S., the Court explained that
"[t]he definition of 'physical force is satisfied under N.J.S.A. 2C:14-2[(c)](1) if
the defendant appli[ed] any amount of force against another person in the
absence of what a reasonable person would believe to be affirmative and freely-
6
The affirmatively-given-permission charge defendant contends his trial
counsel should have requested is also included in the Model Jury charge for the
offense of sexual assault under N.J.S.A. 2C:14-2(c)(1) to define the same
element of that offense – "physical force or coercion." See Model Jury Charges
(Criminal), "Sexual Assault (Force/Coercion) (N.J.S.A. 2C:14-2(c)(1))" (rev.
Jan. 24, 2005).
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26
given permission to the act of sexual penetration." 129 N.J. 422, 444 (1992).
As the Court more recently explained in C.R. v. M.T., ___ N.J. ___, ___ (2021)
(slip op. at 21-22), in 2020 the Legislature amended N.J.S.A. 2C:14-2 by
replacing the term "physical force" and replacing it with the definition provided
by the Court in M.T.S. See L. 2019, c. 474, § 1 (effective January 21, 2020).
Defendant was not charged with, or convicted of, an offense under
N.J.S.A. 2C:14-2(a)(6), or of any crime that includes physical force as an
element. He was charged and convicted of a wholly separate offense under
N.J.S.A. 2C:14-2(a)(7). In pertinent part, N.J.S.A. 2C:14-2(a)(7) defines the
offense for which defendant was convicted as follows: "an actor is guilty of
aggravated sexual assault if the actor commits an act of sexual penetration with
another person" where "[t]he victim, at the time of sexual penetration, is one
whom the actor knew or should have known was . . . physically helpless."
N.J.S.A. 2C:14-2(a)(7)(a). A person is "physically helpless" when he or she "is
unconscious or is physically unable to flee or is physically unable to
communicate unwillingness to act." N.J.S.A. 2C:14-1(g). Thus, by definition,
a person who is physically helpless is unable to freely and affirmatively consent
because he or she lacks the ability to "communicate unwillingness to act." Ibid.
A-0843-20
27
A person who is asleep meets the statutory definition of "physically helpless."
See State v. Rush, 278 N.J. Super. 44, 49 (App. Div. 1994).
The evidence presented at trial established Kate was physically helpless
during the time defendant vaginally penetrated her. See, e.g., id. at 47-48. "[A]
person who is lacking sensory perception and is unable to perform an y
controlled function, including the communication of a lack of consent, meets the
definition of physical helplessness" under N.J.S.A. 2C:14-2(a)(7). Ibid. The
jury found beyond a reasonable doubt that Kate was physically helpless, and we
determined the court properly instructed the jury instruction on the elements of
the offense, including the element of physical helplessness. See Lucas, slip op.
at 7-11.
Trial counsel was not ineffective by failing to request an affirmatively
given permission charge because there was no rational basis in the law
supporting the charge. See Chew, 179 N.J. at 215 (finding counsel's
performance was not constitutionally deficient by failing to request a jury charge
on accomplice liability because there was no rational basis for the charge and,
as a result, the failure to request the charge was not prejudicial). As noted, the
affirmatively-given-permission charge defines "physical force or coercion,"
which is not an element of the crime under N.J.S.A. 2C:14-2(a)(7), the crime
A-0843-20
28
charged against defendant. The State was not required to establish defendant
used force or coercion, and therefore an affirmatively-given-permission charge
defining an element of other offenses under N.J.S.A. 2C:14-2 is inapposite here.7
Defendant failed to sustain his burden under Strickland's first prong
because his trial counsel was not ineffective by failing to request a jury charge
that was unsupported by the evidence or the law. See, e.g., Chew, 179 N.J. at
215. He also failed to satisfy Strickland's second prong because he could not
have suffered prejudice based on his counsel's failure to request an inapposite
jury charge. See ibid. The court correctly rejected defendant's claim he was
entitled to PCR based on his counsel's decision not to request the affirmatively -
given-consent charge.
B.
Defendant also claims counsel was ineffective by failing to call witnesses
on his behalf at trial. He argues counsel's decision not to call any witnesses
deprived the jury from considering his testimony, and the testimony of "other
7
Defendant also argues the physical positioning of Kate's body, "with her
buttocks raised . . . and not moving," supports a finding Kate "consciously
moved into the lordosis position []and did so as a voluntary act under her
conscious control." We reject the argument because it is based wholly on
speculation. There is no evidence Kate "consciously moved" into that position,
and the uncontradicted evidence established Kate was either asleep or
unconscious as defendant vaginally penetrated her and immediately thereafter.
A-0843-20
29
witnesses that he wanted to present," including his expert Lage. Defendant
further argues counsel should have called Kate's estranged husband, L.H., and
Kate's brother-in-law, R.L.W., because they would have testified Kate made
false accusations of sexual assault in the past.
"Determining which witnesses" to subpoena to testify "is one of the most
difficult strategic decisions that any trial attorney must confront." State v.
Arthur, 184 N.J. 307, 320 (2005).
A trial attorney must consider what testimony a witness
can be expected to give, whether the witness's
testimony will be subject to effective impeachment by
prior inconsistent statements or other means, whether
the witness is likely to contradict the testimony of other
witnesses the attorney intends to present and thereby
undermine their credibility, whether the trier of fact is
likely to find the witness credible, and a variety of other
tangible and intangible factors. Therefore, like other
aspects of trial representation, a defense attorney's
decision concerning which witnesses to call to the stand
is "an art," and a court's review of such a decision
should be "highly deferential."
[Id. at 320-21 (citations omitted) (quoting Strickland,
466 U.S. at 693).]
We must "indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting
A-0843-20
30
Michel v. Louisiana, 350 U.S. 91, 101 (1955)). When a defendant asserts his
attorney failed to call exculpatory witnesses, "he must assert the facts that would
have been revealed, 'supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the certification.'" State
v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting Cummings, 321
N.J. Super. at 170). Counsel is not constitutionally ineffective by failing to call
witnesses at a hearing whose testimony would not change the outcome. State v.
Bey, 161 N.J. 233, 262 (1999).
Measured against these principles, we reject defendant's claim his
counsel's performance was deficient by failing to call defendant, and other
unidentified witnesses, at trial. In support of his PCR petition, defendant did
not provide an affidavit or certification based on personal knowledge
establishing what he or the other unidentified, putative witnesses would have
testified to at trial. Defendant's supporting affidavit does not include any facts
concerning the incident with Kate or whether she was physically helpless when
he vaginally penetrated her, or that would have supported a defense to the charge
against him. Thus, his claims counsel erred by failing to call him and the
unidentified individuals as witnesses constitutes a bald assertion insufficient to
A-0843-20
31
satisfy his burden under both prongs of the Strickland standard. See Petrozelli,
351 N.J. Super. at 23; Cummings, 321 N.J. Super. at 170.
We are also unpersuaded by defendant's argument the PCR court erred by
rejecting his claim that his counsel was ineffective by failing to call K ate's
estranged husband and his brother as witnesses at trial. Following defendant's
conviction, Kate's estranged husband and his brother provided certifications
asserting Kate made false accusation of sexual assault in the past. Defendant
argued the putative testimony of Kate's estranged husband and his brother could
have been properly used to challenge Kate's credibility.
The certifications were submitted to the court in support of defendant's
new-trial motion. Defendant argued the certifications satisfied the standard for
a new trial based on newly discovered evidence established in State v. Carter,
85 N.J. 300, 314 (1981). That is, defendant claimed the evidence was "material,"
was "of the sort that would probably change the jury's verdict" at a new trial,
and the information in the certifications was "discovered since the trial and not
discoverable by reasonable diligence beforehand." See ibid.; see also Lucas,
slip. op. at 12-13.
The trial court denied the motion, finding that "whether [Kate] falsely
accused others of sexual assault was irrelevant because her credibility in this
A-0843-20
32
matter was immaterial." Lucas, slip op. at 13. The trial court reasoned that
Kate's credibility was immaterial because she had no memory of the sexual
assault and the testimony concerning the assault was provided by Nell. Id. at
14. The trial court further found there was overwhelming evidence of Kate's
intoxication and "unresponsive state" as defendant vaginally penetrated her such
that "undermining [Kate's] credibility would not be material to the issues in
evidence in the case." Id. at 15. We agreed with the trial court's reasoning,
concluded "defendant failed to fulfill the three elements in Carter," and
determined defendant offered "no basis to order a new trial." Ibid.
In support of his PCR petition, defendant asserted trial counsel's
performance was deficient because, based on the information in the post-trial
certifications, she failed to call at trial Kate's estranged husband and his brother.
A trial counsel must perform a reasonable investigation of a defendant's case.
Porter, 216 N.J. at 353. However, defendant does not claim, and does not offer
any facts establishing, counsel failed to conduct a reasonable investigation or
that counsel would have discovered the information later disclosed in the
certifications during a reasonable pretrial investigation. Defendant does not
offer any facts establishing his counsel had any reason to investigate if Kate had
made false sexual assault allegations against her estranged husband or his
A-0843-20
33
brother. Without such facts, there is no basis to conclude trial counsel's
performance was deficient by failing to discover through a pretrial investigation
that Kate had allegedly made prior false claims of sexual assault against her
estranged husband and his brother.
Moreover, missing from defendant's claim his counsel's performance was
deficient is any evidence trial counsel knew, or through the exercise of
reasonable diligence would have known, that those individuals had that
information. Indeed, defendant recognized his counsel had no reason to
investigate the two putative witnesses; as noted, he argued in support of his new-
trial motion that the information from the two individual could not have been
discovered by his counsel prior to trial through the exercise of reasonable
diligence.8 See Carter, 85 N.J. at 314.
8
On appeal, defendant argues in its decision on the new-trial motion, the court
found that the information provided in the post-trial certifications of Kate's
estranged husband and his brother "was readily discoverable before trial." The
argument is not supported by the record. The new-trial motion, in part, was
based on purported newly discovered information provided by defend ant's
girlfriend, Nancy. The motion court noted that Nancy was listed as a trial
witness by both the State and defendant, and therefore any information she might
have possessed "could have been discovered prior to trial." In a comment that
is unsupported by any competent evidence, the court also stated that "with regard
to the other witnesses," including Kate's estranged husband and his brother, it
"appears . . . most likely . . . that their testimony could have been discovered
prior to trial." We find the court's comment devoid of support in competent
A-0843-20
34
We reject defendant's PCR claim because his counsel's performance was
not deficient by failing to call two witnesses – Kate's estranged husband and his
brother – about whom counsel would not have known, even through the exercise
of reasonable diligence, to have information relevant to Kate's credibility or the
sexual assault for which defendant was charged. A trial counsel's performance
is not constitutionally deficient by failing to discover information that might
have assisted the defense at trial, but about which counsel was unaware or had
no reason to investigate. See, e.g., Dooley v. Petsock, 816 F.2d 885, 891 (3d.
Cir. 1987), cert. denied, 484 U.S. 863 (1987) (stating "[a] trial counsel cannot
be ineffective for failing to raise claims as to which his client has neglected to
supply the essential underlying facts when those facts are within the client's
possession; clairvoyance is not required of effective trial counsel").
Defendant therefore failed to satisfy Strickland's first prong on his claim
trial counsel was ineffective by failing to call those two witnesses. See
evidence establishing a reasonably diligent investigation of the case would not
have yielded the information Kate's estranged husband and his brother
apparently volunteered following defendant's conviction. And, in defendant's
affidavit and the record submitted in support of his PCR petition, there is no
competent evidence establishing defendant's trial counsel failed to conduct a
reasonable investigation that would have resulted in the discovery of the
information from the two putative witnesses. Again, as noted, defendant did
not, and does not, argue otherwise. Defendant argues only that trial counsel
failed to call the two witnesses at trial.
A-0843-20
35
Strickland, 466 U.S. at 687 (explaining a petitioner must establish both prongs
of the Strickland standard to obtain a reversal of the challenged conviction);
Nash, 212 N.J. at 542 (same). For that reason alone, we affirm the court's
rejection of defendant's PCR claim that his counsel was ineffective by failing to
call Kate's estranged husband and his brother as witnesses at trial.
Defendant's claim also fails for the separate but equally dispositive reason
that he cannot establish there is a reasonable probability that but for his counsel's
purported error in failing to call the two witnesses, the result of his trial would
have been different. See Strickland, 466 U.S. at 694. That is because we
determined on defendant's direct appeal that the motion court correctly found
the testimony of the two witnesses was not material to the issues in the case, due
to "overwhelming proof of the victim's intoxication and unresponsive state
coming from the . . . testimony of others." Lucas, slip op. at 15; see also State
v. Preciose, 129 N.J. 451, 476 (1992) (explaining "a prior adjudication on the
merits ordinarily constitutes a procedural bar to the reassertion of the same
ground as a basis for post-conviction review"). Thus, even assuming counsel
erred by failing to call the two witnesses, defendant could not have suffered any
prejudice under Strickland's second prong.
A-0843-20
36
We next consider defendant's claim his counsel was ineffective by failing
to call his expert witness, Lage, at trial. Defendant argues Lage would have
testified in accordance with his expert's report – which is dated July 10, 2015,
four days before the start of defendant's trial. In his report, Lage opines that
Kate's blood alcohol content would have been sufficiently diminished such that
she "could not have been physically helpless at 6:00 a.m." when defendant was
observed vaginally penetrating her. Defendant contends that opinion testimony,
if presented at trial, would have raised a "reasonable doubt[] to the jury that Kate
was faking when she got caught having consensual coitus with" defendant.
Defendant does not argue trial counsel's performance was deficient by
failing to timely obtain Lage's report prior to trial. Defendant's claim is based
solely on the premise his counsel obtained the report and failed to call Lage as
a witness. Defendant, however, failed to provide any competent evidence Lage
provided the report to counsel prior to trial or that trial counsel actually received
the report prior to trial. Defendant did not submit an affidavit from Lage
establishing his delivery of the report to counsel or establishing that either he or
his counsel received the report prior to the trial. And the mere fact the report is
dated four days prior to the start of the trial, and is addressed to defendant's
A-0843-20
37
counsel, does not establish it was either sent to defendant's counsel or that she
received it.
The PCR court observed that the report was untimely because it was dated
four days prior to trial, and Rule 3:13-3 requires the submission of expert's report
thirty days in advance of trial. The Rule further provides that where a report is
not timely submitted, the expert may be barred from testifying at tri al "upon
application by the prosecutor." R. 3:13-3. Defendant does not claim his
counsel's performance was deficient by failing to move for leave to serve the
untimely report, and the PCR court did not determine that the untimeliness of
the report would have resulted in an order barring Lage from testifying at trial.
We therefore do not consider whether the untimeliness of Lage's report alone –
which defendant does not claim resulted from any error by his counsel – requires
a rejection of his PCR claim because his counsel's performance would not have
been deficient by failing to call an expert witness who might have been barred
from testifying under Rule 3:13-3.
Even assuming the report was delivered to defendant's counsel prior to
trial, and the court would not have barred Lage's testimony under Rule 3:13-3,
defendant's PCR claim fails because defendant did not provide any competent
evidence establishing what Lage would have testified to at trial in accordance
A-0843-20
38
with the report. Lage's expert report constitutes inadmissible hearsay, Corcoran
v. Sears Roebuck & Co., 312 N.J. Super. 117, 126 (App. Div. 1998), and it
therefore neither constitutes competent evidence establishing any facts
supporting defendant's PCR petition nor that Lage would have testified in
accordance with the report at trial, see Cummings, 321 N.J. Super. at 170(explaining a petitioner's bald assertions are insufficient to support a PCR claim
because the facts supporting a PCR claim must be "supported by affidavits or
certifications based upon . . . personal knowledge"). As a result, defendant
failed to sustain his burden of presenting competent evidence as to what Lage
would have testified to at trial and, in that failure, defendant did not establish
either that his counsel's performance was deficient or that he suffered any
prejudice by Lage's absence as a witness at trial.
Moreover, even if it could be assumed Lage would have testified in
accordance with his report, defendant failed to present facts establishing either
that his counsel's performance was deficient by failing to call Lage as a witness
or that he suffered prejudice under the Strickland standard by failing to call Lage
as a witness. As noted, "a defense attorney's decision concerning which
witnesses to call to the stand is 'an art,' and a court's review of such a decision
should be 'highly deferential.'" Arthur, 184 N.J. at 320 (citation omitted)
A-0843-20
39
(quoting Strickland, 466 U.S. at 693, 698). Further, we must "indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound
trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel, 350 U.S. at 101).
Counsel is not constitutionally ineffective by failing to call witnesses whose
testimony would not change the outcome. Bey, 161 N.J. at 262.
Here, trial counsel was confronted with substantial evidence establishing
defendant's guilt. See Lucas, slip op. at 15 (finding the trial record included
"overwhelming proof of" Kate's "intoxication and unresponsive state"). DNA
evidence showed defendant vaginally penetrated Kate. The testimony of Kate,
Fae, and Nell, as well as the video recordings of Kate, demonstrated the physical
impairments Kate suffered from her consumption of alcohol. Perhaps most
significant, Nell, a reluctant witness with no apparent reason to fabricate the
facts, testified she saw defendant sexually penetrating Kate, while Kate was
immobile and in a state of what is properly characterized as unconsciousness.
Kate's testimony that she had no memory of the incident further supported the
State's claim she was physically helpless when the sexual assault occurred.
A-0843-20
40
The record plainly reveals trial counsel's strategy. She challenged the
witnesses' recollections and the credibility of their testimony concerning K ate's
consumption of alcohol and the level of her alleged intoxication at 6:00 a.m.,
when the incident occurred. Counsel further developed evidence that during the
time immediately following the incident, Kate acted and spoke in a manner
wholly inconsistent with a finding she was physically helpless a very short time
earlier when the incident occurred. For example, counsel focused on Kate's
conversation with Nell immediately following the incident, Kate's discussion
with defendant during which she expressed concern about the possibility of
having been impregnated, and the fact that Kate drove home from Nancy's house
within thirty minutes of the incident.
Counsel argued that evidence established Kate not only was no longer
intoxicated to such a degree that she was physically helpless, but rather Kate
intentionally feigned physical helplessness during the incident once she realized
Nell observed her having consensual sexual relations with defendant. Trial
counsel's strategy was to demonstrate that Kate's actions were inconsistent with
a finding beyond a reasonable doubt that she was physically helpless as the result
of intoxication at 6:00 a.m. when Nell saw defendant vaginally penetrating Kate.
Trial counsel argued Kate purposely feigned the immobility Nell thought she
A-0843-20
41
observed, as well as her purported lack of memory of the incident, because Kate
did not wish to admit she had been caught having consensual sexual relations
with defendant in the home of her friend Nancy, who was defendant's girlfriend.
When viewed in that context, we are not convinced trial counsel's
performance was deficient by not calling Lage as an expert witness. Trial
counsel's strategy was to cast reasonable doubt on the State's claim Kate was
physically helpless due to her intoxication. Lage's finding Kate suffered from
alcohol induced amnesia is inconsistent with counsel's strategy of establishing
Kate was no longer under the influence of alcohol, and was therefore not
physically helpless when defendant vaginally penetrated her. Indeed, Lage's
report includes the conclusion that Kate "would have had a sufficient alcohol
consumption and blood alcohol level . . . to render her under the influence of
alcohol and also to have produced alcohol-induced amnesia to the events that
occurred." That conclusion is inconsistent with counsel's strategy, supported by
other record evidence, of claiming Kate was not under the influence of alcohol
at 6:00 a.m., was not physically helpless when defendant vaginally penetrated
her, and was sufficiently alert to immediately feign physical helplessness after
Nell observed what was a consensual sexual interaction with defendant.
A-0843-20
42
Defendant also argues Lage would have provided testimony about Kate's
blood alcohol content and level of intoxication at 6:00 a.m. that would have
undermined the State's claim Kate was sufficiently intoxicated at the time to be
physically helpless. To the extent Lage's report suggests such possible
testimony, the opinions in his report are inadmissible as net opinions. See
generally Townsend v. Pierre, 221 N.J. 36, 53-54 (2015) (explaining "the net
opinion rule" and the requirements for admission of an expert opinion under
N.J.R.E. 703).
Lage's discussion of Kate's blood alcohol content is founded on
supposition; for example, he notes the amount of Kate's "alcohol consumption"
upon which his opinion is based "is not totally clear." He also bases his generic
analysis of blood alcohol content levels on a "typical alcoholic beverage"
without regard to the type of drinks Kate consumed and the evidence showing
she consumed drinks consisting of multiple alcoholic beverages. Last, Lage's
putative assessment of Kate's blood alcohol content, and the effect of various
blood alcohol contents on an individual's behavior, are untethered to any
established scientific standard or reference, and thus constitute personal
opinions that are inadmissible net opinions. See Pomerantz Paper Corp. v. New
Cmty. Corp., 207 N.J. 344, 373 (2011) (explaining an expert offers an
A-0843-20
43
inadmissible net opinion when he or she does not "offer an objective support for
his or her opinion[], but testifies only to a view about a standard that is
'personal'" (citation omitted)).
Defendant's reliance on Lage's report concerning Kate's level of
intoxication is misplaced because his putative opinions, as expressed in the
report, would have been inadmissible at trial. See Pierre, 221 N.J. at 55 ("The
net opinion rule . . . mandates that experts 'be able to identify the factual bases
for their conclusions, explain their methodology, and demonstrate that both the
factual bases and the methodology are reliable.'" (citation omitted)).
Defendant's counsel was not ineffective by failing to call an expert at trial whose
testimony would have been excluded as an inadmissible net opinion.
In sum, we are convinced defendant failed to satisfy Strickland's first
prong on his claim his counsel was ineffective by failing to call Lage as a witness
at trial. For that reason alone, we affirm the court's denial of defendant's PCR
claim that his counsel was ineffective by failing to call Lage as a witness at trial.
See Strickland, 466 U.S. at 700 (explaining a failure to satisfy either prong of
the Strickland standard requires the denial of a petition for PCR); see also Nash,
212 N.J. at 542 (same).
A-0843-20
44
We also affirm the order denying the claim because, even assuming
counsel erred by not calling Lage as a witness, defendant failed to establish that
but for the error there is a reasonable probability the result of his trial would
have been different. Strickland, 466 U.S. at 694. As we have explained, Lage's
putative testimony would have undermined the defense, or would have
otherwise been inadmissible as net opinion. Thus, we discern no basis to
conclude that the result of defendant's trial would have been different if Lage
had been called as a witness. Defendant had an affirmative duty to prove
prejudice, State v. Gideon, 244 N.J. 538, 551 (2021), and he failed to sustain
that burden.
Defendant's remaining arguments, to the extent we have not directly
addressed them, are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-0843-20
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