STATE OF NEW JERSEY VS. M.D.K. (11-01-0025, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4572-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.D.K.,
Defendant-Appellant.
_____________________________
Submitted November 2, 2020 – Decided December 29, 2020
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 11-01-0025.
Joseph E. Krakora, Public Defender, attorney for
appellant (Angela Maione Costigan, Designated
Counsel, on the brief).
James L. Pfeiffer, Warren County Prosecutor, attorney
for respondent (Dit Mosco, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
A jury convicted defendant M.D.K. of the second-degree sexual assault of
A.C. (Ann), a child under thirteen years of age, N.J.S.A. 2C:14-2(b), and third-
degree endangering the welfare of Ann, N.J.S.A. 2C:24-4(a).1 The evidence at
trial revealed that in June 2010, defendant was living with his sister, J.C. (Julie),
Ann's mother, and other family members. State v. M.D.K., No. A-599-12 (App.
Div. Oct. 23, 2014). Ann, eight-years old at the time, told her mother that
defendant made her sleep with him the night before, and that he touched her in
a sexual manner. Id. at 2. When confronted by Julie, defendant admitted the
child slept in his room the night before, but he denied any inappropriate contact.
Id. at 2–3. According to Ann's testimony at trial, defendant said that he may
have "accidentally grabbed [Ann] the wrong way when [he] carried her back to
[her] bed, or maybe the cat . . . was in the bed . . . [and] was clawing at [Ann]."
Ann became frightened at defendant's appearance in the house the next day, and
Julie took her to the police station. Id. at 3.
A detective from the Warren County Prosecutor's Office conducted a
videotaped interview of Ann that was played for the jury in which she described
defendant's conduct in his bedroom. In addition, Ann and her mother testified
1
We use initials and pseudonyms for defendant, the alleged child victim and
other family members pursuant to Rule 1:38-3(c)(9).
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before the jury, as did defendant, who admitted Ann slept in his room on the
night in question, as she frequently did, but denied any inappropriate touching.
The jury convicted defendant of both counts of the indictment, and the
judge sentenced him to an eight-year term of imprisonment with an eighty-five
percent period of parole ineligibility pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence on direct
appeal. M.K.D., slip op. at 13. The Supreme Court denied defendant's petition
for certification. State v. M.D.K., 221 N.J. 286 (2015).
In a timely pro se PCR petition, defendant alleged there was new evidence
not available at the time of trial, and that he "was not represented correctly." In
a supplemental verified petition prepared after the appointment of PCR counsel,
defendant specifically alleged the ineffective assistance of trial counsel (IAC).
In his brief, PCR counsel asserted that trial counsel's investigator interviewed
four individuals who provided potentially exculpatory evidence, but, for reasons
unexplained by the record, trial counsel chose not to call any of them as
witnesses. The investigative reports furnished with the brief revealed the
following.
In February 2012, immediately before trial, the investigator spoke with
defendant's mother, C.E. (Cathy), who owned the home where the alleged
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incident occurred and lived there with Ann, Julie, Julie's other children, and
defendant. Cathy said that after the allegations were made, she saw Ann crying
in her room. When Cathy approached the child, Ann told her what "she had said
happened was a dream but that her mother and [her mother's boyfriend] told her
it was real." Ann wanted to talk to defendant, who had moved out of the house
at that point. According to Cathy, Julie came into the room, screamed, cursed,
and forbid Cathy to speak with Ann or any of her other children. Cathy did not
speak with Ann again. Additionally, Cathy told the investigator that Ann's
father was abusive to Ann and her siblings.
The investigator also spoke to K.E. (Kerry), defendant's sister. She was
the first person Julie spoke with following Ann's disclosure "that she had a
'dream' that [defendant] had touched her inappropriately." According to Kerry,
the family seemingly agreed that Ann should "speak with a therapist to verify,
if possible, where those allegations spr[a]ng from." Kerry also said that Ann's
father was abusive toward the child. Although defendant continued to live in
the same home with Ann, Julie, and Cathy for a while after the investigation,
eventually he moved in with Kerry and her children and never caused any
problems.
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The defense investigator also spoke with two other people who knew
defendant for many years and essentially vouched for his good character. PCR
counsel contended trial counsel provided ineffective assistance because he failed
to produce any of these four individuals as witnesses at trial.
Additionally, defendant offered a letter and certification from his uncle,
C.K. (Carl), both dated post-trial. The trial occurred in February and March
2012; Carl claimed that sometime in 2013, he asked Julie what happened
between defendant and Ann. Carl stated Julie told him that defendant owed her
money for "pot[,]" and, when he failed to pay, "she called the cops with the story
that he touched her daughter in inappropriate ways[.]" Carl said he called Cathy
and informed her of the conversation.
The record fails to explain why in August 2018, different PCR counsel
filed a supplemental brief in reply to the State's brief. The reply brief rebutted
the State's contention that defendant's PCR petition was procedurally barred and
failed to establish grounds for a new trial based on newly discovered evidence.
Successor PCR counsel filed a second supplemental brief in September 2018
which addressed whether the statements Julie allegedly made to Carl were
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exceptions to the hearsay rule and admissible as statements against interest
pursuant to N.J.R.E. 803(c)(25).2
The first PCR hearing took place on October 23, 2018. In preliminary
remarks, the judge, who was not the trial judge, framed the issue as a motion for
a new trial based on newly discovered evidence. In discussing the need for an
evidentiary hearing, the judge asked if PCR counsel anticipated calling trial
counsel in addition to Carl as a witness because it was not clear if trial counsel
"knew" of Carl's allegations. 3 In response, PCR counsel replied, "No, we're not
alleging ineffective assistance, if that's what [y]our [h]onor's question [was]."
At a later point in the hearing, when the prosecutor demanded discovery from
defendant's trial file because attorney-client privilege was "waived on a PCR,"
the judge said, "But that's ineffective assistan[ce of] counsel . . . not one of
2
N.J.R.E. 803(c)(25) excepts from the hearsay rule
[a] statement which was at the time of its making so far
contrary to the declarant's pecuniary, proprietary, or
social interest, or so far tended to subject declarant to
civil or criminal liability, or to render invalid
declarant's claim against another, that a reasonable
person in declarant's position would not have made the
statement unless the person believed it to be true.
3
Given Carl's claim that Julie did not make the statements until after trial, we
fail to see why the judge was concerned about whether trial counsel was aware
of this information while cross-examining Julie.
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[defendant's] grounds for appeal, at the moment." Successor PCR counsel said
nothing in response.
However, in a January 31, 2019 letter to the judge, PCR counsel responded
to "the State['s] submitted [o]rder of January 15, 2019[.]" That letter clearly
states that defendant was not waiving his IAC claims, but only such claims
related to "pretrial matters[.]" He reminded the court of the investigative reports
that were furnished with defendant's brief, and further noted that the State had
specifically addressed defendant's IAC claims in its brief.
In a written response to PCR counsel, the judge stated, "The [h]earing will
not be expanded as requested by appellant. The issue is to determine the
credibility . . . of the third[-]party's statement that [Julie] admitted that she lied
at trial. Pending the outcome of that [h]earing, other issues may become
relevant."
The judge held an evidentiary hearing on February 21, 2019, at which Carl
and defendant testified.4 The judge framed the issue as follows:
We're here today because of a hearsay document
received by defense counsel concerning . . . [Julie], . . .
sister of [defendant]. Concerning the conversation,
which [Carl] had with [Julie]. . . .
4
The judge said the hearing was being held pursuant to a prior order he entered.
We assume this is the January 15, 2019 order.
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Now, defense counsel claims that that is a
statement against interest . . . . The [c]ourt knows that
although [it] maybe a statement against interest, it's a
hearsay document. And unless some reliability is
attached to that document, it's not going to be
admissible.
Carl testified and was somewhat unsure about when he had the
conversation with Julie. At one point, Carl said he told Cathy about the
conversation three-to-six months after trial and believed she would let
defendant's trial counsel know. Carl also identified a March 6, 2012 Facebook
message to Julie asking her, "What happened? Details please." 5
Defendant also testified. He said that sometime after trial, his mother told
him of Carl's conversation with Julie. Defendant denied owing Julie any money
for marijuana. He implied Julie falsely accused him because he wanted her to
stop selling marijuana from his mother's house because by doing so, Julie was
"going to lose [her] kids."
The judge immediately rendered an oral decision at the conclusion of the
testimony and without argument by the attorneys. After summarizing the
contents of the two documents authored by Carl, the judge said:
Most people, if they had received this
information, would have done something with it. I
mean . . . obviously, it's critical. If true, it's critical. It
5
The jury returned its guilty verdicts on March 6, 2012.
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reflects an opportunity for defense counsel to question
about motive of the statement. . . . [D]id [defendant]
owe you money[?] And that never happened in this
case, but I don't know why. I gather it's because the
trial attorney didn't know this. And the prosecutor
didn't know it. . . . It just appears . . . after the fact.
As already noted, Carl's written statements said Julie did not make these
statements to him until after defendant's trial. Although at times confused, Carl's
testimony can be found to generally corroborate this time frame.
The judge continued:
The [c]ourt was looking for some connection
which can verify [Carl's] statement. Not verify it, but
make [it] seem relevant. For example, "Yeah, I did owe
her $700. But I never told my attorney that. I never
told anybody that." But . . . [d]efendant here in [c]ourt
had testified under oath, that, "No, I didn't owe her any
money." So the statement itself lacks credibility.
Of course, whether defendant actually owed his sister $700 for marijuana was
beside the point. The critical issue was whether Julie told Carl that she falsely
accused defendant because he owed her money.
The judge completed his ruling by saying:
I've had several cases similar to this when hearsay
documents which appear to have a great deal of
meaning become basically non-evidential because
they're hearsay documents. And they simply are not
trustworthy. There's nothing that you can verify, as
good as this statement sounds, there's nothing to do to
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verify it. In fact, it's contradictive by the very person,
[defendant], who has filed a [PCR] petition . . . .
The [c]ourt created an evidentiary hearing to give
an opportunity to make this document relevant as
"newly discovered evidence." It's difficult to tell when
it was discovered. I don't think that's the major issue.
It's whether or not the document itself can be given any
credibility. I find that it cannot.
[(Emphasis added).]
Again, whether defendant owed his sister money for marijuana was irrelevant to
the issue at hand. Moreover, the entire point of holding an evidentiary heari ng
was not to decide the credibility of Carl's letter and certification; the judge had
to determine whether Carl's testimony about Julie's statements was worthy of
belief. He never did.
The judge denied defendant's PCR petition and entered an order that
contained the following rationale: "[Carl's] statement regarding an alleged
statement made by the victim's mother, would not have been admissible because
it lacked any indicia of reliability."
I.
On appeal, defendant notes the PCR judge failed to "address or
acknowledge" his asserted IAC claims, and he was entitled to an evidentiary
hearing on those. The State argues the "issue was not in the original [PCR]
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petition . . . and was subsequently essentially waived by defense counsel." It
cites PCR counsel's statement during the October 23, 2018 hearing that we
quoted above. The State also argues that defendant failed to demonstrate a prima
facie case of IAC premised on the statements made to the investigator by the
four witnesses we noted above and trial counsel's failure to call any of those
individuals as witnesses.
We reject the State's disingenuous argument that defendant did not make
an IAC claim in his original petition. Although it may have been inartful,
defendant stated in his pro se PCR petition the he "was not represented
correctly" at trial. The supplemental verified petition filed with the assistance
of appointed counsel specifically made an IAC claim.
The correspondence between PCR counsel and the court which we have
cited at length makes it clear that the State responded to the merits of the IAC
arguments. Moreover, after this appeal was filed, the assistant prosecutor
representing the State on appeal wrote to the judge. It does not appear from the
letter that defense counsel was served with the correspondence. The prosecutor
noted the judge had not addressed defendant's IAC claims, "other than a
statement . . . in the 23 October 2018 hearing to the effect IAC was not one of
the grounds for appeal[.]" She inquired whether the judge intended to file a
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supplemental statement of reasons pursuant to Rule 2:5-1(b). The judge's
written reply stated that PCR counsel "chose not to advance [defendant's IAC]
claims[,]" and, therefore, the judge only addressed the "newly discovered
evidence issue." The judge cited an April 16, 2018 letter from PCR counsel
which the judge said he "clarified" at the October 23, 2018 hearing.
The April 16, 2018 letter is in the record. Primarily, it dealt with a dispute
PCR counsel was having with the State over its request for "transcripts of
pretrial hearings." Counsel said he "accept[ed the prosecutor's] previous
proposal that [she] would not require transcripts[] of the hearings if the defense
waived pretrial claims." PCR counsel ended the letter by noting defendant
agrees to this waiver to "avoid[] further delay in the adjudication of his PCR
claim based on newly discovered evidence."
We will not address defendant's IAC claim on a blank slate, as the State
urges us to do as an alternative argument. Defendant produced reports
summarizing interviews conducted before trial with four witnesses. We reject
the State's arguments that the statements allegedly made by Ann and Julie to two
of those witnesses would have been inadmissible at trial; clearly, at the least,
trial counsel could have used them to impeach Ann and Julie when they testified.
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Perhaps trial counsel made a strategic decision not to call any of the four
witnesses, but that is not clear from the trial record.
We therefore remand the matter to the Law Division to conduct further
proceedings on defendant's IAC claim solely as it relates to those four
investigative reports and trial counsel's decision not to question Ann and Julie
about the specific statements referenced in the reports, or call any of the four
individuals referenced in the reports as witnesses. If PCR counsel intends to
call trial counsel, the investigator or any of the four persons that are subjects of
the reports as witnesses on remand, we order the court to conduct an evidentiary
hearing on the IAC claim. If PCR counsel intends to rely solely on the reports,
we leave the conduct and scope of the proceedings to the PCR judge's sound
discretion.
II.
Defendant argues that Julie's admission to Carl that she falsely accused
defendant was newly discovered evidence that met the three-prong standard for
a new trial under State v. Ways, 180 N.J. 171 (2004). There, the Court said:
To meet the standard for a new trial based on newly
discovered evidence, defendant must show that the
evidence is 1) material, and not "merely" cumulative,
impeaching, or contradictory; 2) that the evidence was
discovered after completion of the trial and was "not
discoverable by reasonable diligence beforehand"; and
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3) that the evidence "would probably change the jury's
verdict if a new trial were granted."
[Id. at 187 (quoting State v. Carter, 85 N.J. 300, 314
(1981)).]
"[A]ll three prongs of that test must be satisfied before a defendant will gain the
relief of a new trial." Ibid. (citing Carter, 85 N.J. at 314).
We agree with defendant that the judge never conducted the requisite
analysis. Instead, the judge focused his attention on the admissibility of Carl's
two written statements and concluded the documents lacked "credibility."
We assume this meant that the judge found the documents and their
contents lacked "reliability[,]" a term he used at an earlier hearing, because
defendant failed to corroborate that he owed Julie money for marijuana he
allegedly purchased. However, the hearsay exception for statements against
interest does not require nor necessarily permit such inquiry. "'[E]xtrinsic
circumstances bearing on the general reliability or trustworthiness of the
declarant's statement' do not pertain to the admissibility of the statement, which
instead must be determined on 'a statement's self-incriminating character'
alone." State v. Williams, 169 N.J. 349, 359 (2001) (alteration in original)
(quoting State v. White, 158 N.J. 230, 240 (1999)). Clearly, if Julie told Carl
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she falsely accused defendant of sexual assault and, thereby, perjured herself at
trial, that statement would be excepted from the hearsay rule.
The statements Julie allegedly made to Carl clearly satisfy the second
prong of Ways' standard. However, we disagree with defendant's assertion in
his brief that the judge found Carl to be a credible witness. Simply put, the
judge inexplicably focused his attention on the "hearsay document[s]" and never
found, as a fact, that Julie made the alleged statements to Carl. Without that
essential finding, i.e., that Julie made a statement against interest, we cannot
decide whether the newly discovered evidence — Julie's false accusation —
satisfies the other prongs of Ways' test.
We will not make the factual determination ourselves. See State v. Elders,
192 N.J. 224, 244 (2007) ("An appellate court 'should give deference to those
findings of the trial judge which are substantially influenced by his opportunity
to hear and see the witnesses and to have the "feel" of the case, which a
reviewing court cannot enjoy.'" (quoting State v. Johnson, 42 N.J. 146, 161
(1964))). We therefore remand the matter to the PCR court to determine whether
Julie told Carl that she falsely accused defendant of the sexual assault of Ann.
If the judge finds such statements were made, he must then consider whether
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they satisfy the first and third prongs of the Ways standard. Those two standards
are interrelated. As the Court explained:
The characterization of evidence as "merely
cumulative, or impeaching, or contradictory" is a
judgment that such evidence is not of great significance
and would probably not alter the outcome of a verdict.
However, evidence that would have the probable effect
of raising a reasonable doubt as to the defendant's guilt
would not be considered merely cumulative,
impeaching, or contradictory.
[Id. at 189 (citing State v. Henries, 306 N.J. Super. 512,
535 (App. Div. 1997)).]
We recognize that the PCR judge was retired and serving on recall. If the
remand hearing is conducted by a different judge, we leave the conduct of the
hearing to her or his sound discretion, including whether Carl must, if able, be
produced again as a witness. We also leave to the remand judge's sound
discretion whether to permit the State or defendant to produce additional
witnesses.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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