Opinion
DOCKET NO. A-0815-12T1
07-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LLOYD LINDSEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Leone and Manahan.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 02-05-0650 and 02-05-0633.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Lloyd Lindsey appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. The court did not conduct an evidentiary hearing. After a review of the record in light of the issues raised, we affirm.
On February 13, 2000, at approximately 10 p.m., A.M.B. was walking to a friend's home on Bellevue Avenue in the City of Trenton. As she was walking, she was approached by defendant in a car. Defendant asked A.M.B. if she wanted a ride. A.M.B. responded that she did not and continued walking. As she continued to walk, defendant grabbed her arm and held a knife to her back. A.M.B. was then forced by defendant into his vehicle which he drove to an empty lot. After forcing A.M.B. to perform fellatio and anal intercourse, he ordered her out of the car and drove off.
A.M.B. walked out of the lot to the main street. She was approached by a male in a car. A.M.B. told him that she was just raped. A.M.B. refused his offer to take her to the hospital or to the police station. Instead she requested that he take her to her home, which he did.
The next morning, A.M.B. called the police and reported the sexual assault. A.M.B. showed the police where the assault took place. A.M.B. was then transported to the police station where she was shown several photographs of possible suspects. She was unable to identify any of the individuals as her assailant.
On December 6, 2001, information was received by the police from the New Jersey State Police Laboratory. The laboratory's analysis of the evidence collected from A.M.B., and the area where her assault took place, led law enforcement to consider defendant a suspect in A.M.B.'s sexual assault.
On January 3, 2002, the Trenton Police asked A.M.B. to come to police headquarters. While there, A.M.B. was shown a photo array. She identified the defendant as her assailant.
On May 23, 2001, at approximately 10 p.m., L.D. was walking on Trent Street in the City of Trenton. She was looking for a public phone to call her boyfriend to give her a ride. As she was walking, she was approached by defendant in a car. Defendant asked her if she wanted a ride. She stated she did not. He approached her and grabbed her from behind holding a sharp object to her back which she believed to be a knife. L.D. was forced by defendant into the vehicle. Defendant drove the vehicle to a remote location. At that location, while in the vehicle, defendant forced L.D. to perform fellatio. Defendant also removed money out of L.D.'s pocketbook. L.D. was able to escape from the vehicle. Defendant drove away.
L.D. ran down the alley onto Willow Street. As L.D. came out of the alleyway she heard the horn of her boyfriend's car. She went to his car and told him what happened. L.D. reported the assault to the police. L.D. was taken to the hospital for an examination. After the examination, L.D. went to Trenton Police Headquarters, where she looked at several photos of possible suspects. She was unable to identify the perpetrator. The next day L.D. returned to Trenton Police Headquarters, where she looked at a photo array and identified defendant as her assailant.
In May 2002, a Mercer County grand jury returned Indictment 02-05-650, regarding the offenses against A.M.B. It charged defendant with first-degree kidnapping, contrary to N.J.S.A. 2C:13-(b)(1)-(2); first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(3); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(a); third-degree possession of a weapon for unlawful purpose, contrary to N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d); and fourth-degree certain persons not to possess a weapon, contrary to N.J.S.A. 2C:39-7(a).
Also in May of 2002, a Mercer County grand jury returned Indictment 02-05-633, regarding the offenses against L.D. It charged defendant with first-degree kidnapping, contrary to N.J.S.A. 2C:13-(b)(1)-(2); first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(3); first-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(1); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(a); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d); and fourth-degree certain persons not to possess a weapon, contrary to N.J.S.A. 2C:39-7(a).
Defendant stood trial on Indictment 02-05-650, regarding the offenses against A.M.B., in May 2003. Pre-trial motions were heard. The State sought to admit evidence relating to the crimes against L.D. charged in Indictment 02-05-633 pursuant to N.J.R.E. 404(b). Following the pre-trial hearing, the court admitted this evidence under N.J.R.E. 404(b) for the purpose of demonstrating defendant's motive, purpose or intent. Over objection, the court admitted a sanitized version of the evidence with limiting instructions. At the conclusion of the trial, defendant was found guilty on all counts of the Indictment.
In February 2004, a plea offer was extended to defendant where, in return for a plea to Indictment 02-05-633 regarding L.D., the State would recommend a thirty-year aggregate sentence on defendant's conviction on Indictment 02-05-650. The plea offer was rejected by defendant.
In April 2004, subsequent to plea negotiations between the State and defendant, with the assistance of new counsel, defendant and the State entered into an agreement covering both indictments. Pursuant to the agreement, in return for defendant's guilty plea to Count One and Count Three of Indictment 02-05-633, the State agreed to recommend a maximum sentence of twenty-five years in state prison with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). According to the agreement, the sentence imposed on each count of this Indictment would run concurrent with each other and concurrent with the sentence imposed on all counts under Indictment 02-05-650, which the State would recommend should also be twenty-five years subject to NERA's eighty-five percent parole disqualifier. A condition of the agreement required defendant to waive his right to appeal, including his right to appeal the trial.
On the same day he entered the plea, defendant was sentenced on Indictment 02-05-650. The sentence was as follows: Count One to a twenty-five year state prison term with an eighty-five percent parole disqualifier. Count Two to a twenty-year state prison term with an eighty-five percent parole disqualifier to run concurrent with Count One. Count Three merged into Count Two. Counts Two and Three to run concurrent to Count One. Count Four merged into Count Three. On Count Five, defendant was sentenced to a five-year prison term with a parole disqualifier of two-and-a-half years. Count Six was merged with Count Five. Defendant was sentenced on Count Seven to an eighteen-month state prison term with a parole disqualifier of eighteen months to run concurrent with Count Five.
On Indictment 02-05-633, defendant was sentenced on Count One to a term of twenty-five years with an eighty-five percent parole disqualifier and on Count Two to a term of twenty years concurrent to Count One with an eighty-five percent parole disqualifier. At the time of sentence, the court stated its intention was to impose an aggregate sentence upon defendant of twenty-five years with an eighty-five percent period of parole ineligibility. No direct appeal was filed.
On or about June 28, 2007, defendant, appearing pro se, filed a petition for PCR. Defendant was thereafter assigned counsel for this petition. In September 2009, defendant filed an amended verified petition for PCR, a certification in support of the petition, and a brief in support of the petition for PCR. The State filed a brief in opposition. The court conducted a non-evidentiary PCR hearing on May 18, 2012. On May 31, 2012, the trial court issued a written opinion denying defendant's PCR petition. This appeal follows.
On appeal, defendant argues:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO FILE AN APPEAL ON HIS BEHALF.
B. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY PRESSURED HIM INTO ACCEPTING A CONSOLIDATED PLEA BARGIN.
Although defendant thus refers to his "trial attorney," he does not make an ineffective assistance claim regarding the counsel who represented him at the trial on Indictment 02-05650. The substituted counsel negotiated the plea on the remaining indictment. Defendant's claims of ineffective assistance are directed solely to this substituted plea counsel. Defendant claims that the plea counsel both failed to recognize the "strong" appellate issue that the other-crimes evidence was improperly admitted and, also coerced him to accept the plea to the remaining indictment which included a waiver of his right to appeal that "strong issue."
In considering a PCR petition, we begin with a presumption that a defendant who was represented at the trial level received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984); State v. Loftin, 191 N.J. 172, 197 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Loftin, supra, 191 N.J. at 198.
In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the Court identified a two-part test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
To satisfy the second part of the Strickland test, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
"[A] reviewing court must assess the performance of counsel with a 'heavy measure of deference to counsel's judgments.'" State v. DiFrisco, 174 N.J. 195, 220 (2002) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Ineffective assistance of counsel is not proven by showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. Ibid.; see State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003).
"In determining whether defense counsel's alleged deficient performance prejudiced the defense, '[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.'" State v. Arthur, 184 N.J. 307, 319 (2005) (alteration in original) (quoting Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697). The Arthur Court reconfirmed the Strickland standard and emphasized that "[a] reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." Ibid.
For the purpose of evaluating defendant's claim that plea counsel was "ineffective" by failing to file an appeal challenging the admission of the N.J.R.E. 404(b) evidence, we note that the plea court did not advise defendant that he had a right to appeal the trial court's determination, notwithstanding his waiver. See State v. Gibson, 68 N.J. 499, 511-12 (1975). A defendant must be informed that he may still appeal the trial, but the prosecutor may rescind the negotiated agreement, revoke the charge and sentencing concessions and try the defendant. Id. at 513; State v. Sainz, 107 N.J. 283, 294 (1987); see R. 3:9-3(d). Accordingly, we assume for purposes of our decision that the plea counsel could have appealed the 404(b) issue without losing the benefits of the agreement.
We will also assume that defendant did not receive effective assistance because plea counsel did not file a direct appeal raising the 404(b) issue. In that situation, "Rule 3:22-4 does not bar our review of the issues defendant raises." State v. Guzman, 313 N.J. Super. 363, 375 (App. Div.), certif. denied, 156 N.J. 424 (1998). "To remedy the prejudice to defendant resulting from the ineffective assistance he received in his direct appeal," we will consider the 404(b) issue "presented on this appeal from a denial of post-conviction relief as if [it was] being presented in a direct appeal." Ibid.
Since trial counsel objected to the admission of evidence of defendant's alleged kidnapping and sexual assault of another victim as highly prejudicial, on appeal we first determine whether there was error, and if error, whether it was "harmful error." An error will not lead to reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337-38 (1971).
A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). This standard governs review of the admissibility of other-crimes evidence under N.J.R.E. 404(b), which is left to the discretion of the trial court, "because of its intimate knowledge of the case." State v. Covell, 157 N.J. 554, 564 (1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). Appellate courts will only overturn an N.J.R.E. 403 determination upon a "clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).
Notwithstanding that deference, our courts have recognized that other-crimes evidence, even when probative of an issue in dispute, has the strong potential to cause irreparable prejudice to a defendant because of its natural "tendency to demonstrate a criminal predisposition." State v. G.S., 145 N.J. 460, 468 (1996). Other-crimes evidence has the capacity to "blind the jury from a careful consideration of the elements of the charged offense" and so tarnish a defendant that he may be convicted on the basis of what he once was rather than what he has recently done. State v. Blakney, 189 N.J. 88, 93 (2006). In order to safeguard against the misuse of other-crimes evidence, we have required our trial courts to adhere to strict standards before admitting such evidence and, typically, to conduct a N.J.R.E. 104 hearing out of the presence of the jury. State v. Hernandez, 170 N.J. 106, 127 (2001).
N.J.R.E. 404(b) provides:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Evidence of other crimes, wrongs or acts, is inadmissible "to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Stevens, 115 N.J. 289, 293 (1989). However, "[t]he Rule expressly permits such evidence to be admitted to prove other facts in issue," including motive. Ibid.
In State v. Cofield, 127 N.J. 328 (1992), the Supreme Court enunciated a four-part test for admission of evidence of other crimes or bad acts under N.J.R.E. 404(b):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Id. at 338.]
In order to satisfy the first-prong of the Cofield test, evidence must be relevant to a material issue that is "genuinely disputed." Cofield, supra, 127 N.J. at 338 (citing Stevens, supra, 115 N.J. at 301). "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In criminal prosecution, New Jersey courts generally admit a wider range of evidence when motive or intent of the accused is material." Covell, supra, 157 N.J. at 565 (quoting State v. Rogers, 19 N.J. 218, 228 (1995)). This includes evidence "that 'tend[s] to shed light' on a defendant's motive" or "'tend[s] fairly to explain his actions.'" Ibid. (quoting Rogers, supra, 19 N.J. at 228). This inquiry favors admissibility. State v. Deatore, 70 N.J. 100, 116 (1976).
Under part two of the Cofield test, the evidence must be similar in kind and reasonably close in time. Cofield, supra, 127 N.J. at 338. However, "when motive is the object of the proffered evidence, similarity is not a requirement for admissibility." State v. Castagna, 400 N.J. Super. 164, 179 (App. Div. 2008).
The third prong of the Cofield test requires that the State prove the other crime or bad act by clear and convincing evidence. Cofield, supra, 127 N.J. at 338.
We conclude that the trial court did not err in finding that the first three prongs of Cofield were satisfied. As to the first prong, the other-crimes evidence was offered for motive, intent or purpose. Specifically, it was offered as proof that the victim was removed by force to a remote location for the purpose of committing a sexual assault. A material issue in dispute was whether defendant removed A.M.B. from the street with purpose "[t]o facilitate commission of [a] crime" or "[t]o inflict bodily injury or to terrorize the victim." N.J.S.A. 2C;13-1(b)(1),(2). Since defendant's purpose, intent or motive in forcefully removing A.M.B. was an essential element to convict him on the kidnapping charge, there was a "legal connection between the proffered evidence and a fact in issue[.]" State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990).
As to the second prong, the criminal conduct was similar. Defendant removed the victims off of the street and forced each victim into a car at knifepoint, drove them to a deserted area, and sexually assaulted them. The incidents were relatively close in time. The May 23, 2001 assault occurred approximately fifteen months after the February 13, 2000 assault. Our courts have held that longer time periods between other-crimes evidence and the crime charged have satisfied the temporal requirement. See, e.g., State v. Krivacska, 341 N.J. Super. 1, 41 (App. Div. 2001) (ruling that similar sexual assaults approximately two years apart were "reasonably proximate in time"); see also Stevens, supra, 115 N.J. at 295-96 (affirming the admission of evidence of an act occurring over two years prior to the crime charged.)
As to the clear and convincing requirement of the third prong, there was L.D.'s uncontradicted testimony regarding the assault, which was corroborated by a detective and by L.D.'s boyfriend. L.D. also identified defendant as her assailant.
The fourth prong of Cofield, supra, 127 N.J. at 338, requires application of the balancing test of N.J.R.E. 403. Otherwise relevant evidence is excluded "if 'its probative value is substantially outweighed by the risk of . . . undue prejudice.'" Covell, supra, 157 N.J. at 568 (quoting N.J.R.E. 403). "In particular, evidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." Ibid. (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Generally, "[t]he 'more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it' under N.J.R.E. 403." Id. at 569 (quoting State v. Medina, 201 N.J. Super. 565, 580 (App. Div.), certif. denied, 102 N.J. 298 (1985)). Our Supreme Court has acknowledged that the fourth prong of the Cofield test is the "most difficult." State v. Barden, 195 N.J. 375, 389 (2008).
The other-crimes evidence must be "necessary" for the proof of the disputed element. Stevens, supra, 115 N.J. at 301. The defense must have either projected the element or relevant factor as arguable before trial, raised as an issue during the trial, or refused to concede the same. See id. at 301-02 (citations omitted). Given the "damaging nature" of other-crimes evidence, the court must consider whether the matter can be adequately proved by other evidence. Id. at 303.
Evidence of motive, however, "require[s] a very strong showing of prejudice to justify exclusion." Covell, supra, 157 N.J. at 570 (emphasis added). In criminal prosecutions, courts generally admit a wider range of evidence as relevant to motive or intent of the accused when that issue is material. Rogers, supra, 19 N.J. at 228 (citation omitted). Evidence may be admitted if it "[tends] to shed light" on motive or intent or tends to "fairly explain" certain actions of the accused. Covell, supra, 157 N.J. at 565 (citation omitted). In fact, such evidence "'is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant.'" State v. Carter, 91 N.J. 86, 106 (1982) (quoting 1 Wharton, Evidence § 170 (13th ed. 1972)). To underscore the court's tendency to admit motive evidence, the Court in Covell cited examples of highly inflammatory but admissible sexual conduct evidence, including evidence of a defendant's lewd acts as relevant to charge of child abuse. See Covell, supra, 157 N.J. at 571 (citations omitted); see also State v. Crumb, 307 N.J. Super. 204, 231-32 (App. Div. 1997) (upholding admission of the defendant's letters, verses, and drawings demonstrating his hatred towards African-Americans into evidence under N.J.R.E. 404(b) to prove the defendant's motive in murdering an African-American man), certif. denied, 153 N.J. 215 (1998).
Subsequent to the pre-trial Rule 104 hearing, the trial court found that the State had satisfied all four elements of the Cofield test. The trial court recognized the prejudicial nature of the evidence but determined that its probative value as to motive, purpose or intent outweighed the prejudice. The court found:
There is more problematic [sic] the 404(b) testimony of prior acts of Mr. Lindsey as they would pertain to the events for which he is presently on trial, and that presents a very close and complicated question. As we are aware, prior crime testimony or prior bad act testimony can be very prejudicial and can be very probative both at the same time, and it's the Court's duty to determine whether the probative evidence outweighs the prejudicial effect that the testimony otherwise would introduce into the case . . . .
The fourth prong is that the potential prejudice outweighs the probative value. I do not believe — this is a matter that is generally left to the discretion of the trial court, and in this case, the prejudice does not outweigh the probative value. The probative value is powerful, this Court finds. The prejudice is powerful as well, strong as distinguished from powerful, but very probative, very, very probative, and this Court finds that the probative value outweighs the prejudicial value substantially.
We find that the other-crimes evidence offered by the State as proof of an essential element of the kidnapping charge, i.e., defendant's purpose for his forceful removal of the victim, was highly probative. The defendant refused to concede either that conduct or his motive for engaging in that conduct. See Stevens, supra, 155 N.J. at 301-02 (citations omitted). The trial judge referenced this argument in his finding:
The prosecutor offers by way of argument that there is a material dispute which would be anticipated or, in fact, exists by virtue of the kidnapping that relates to the motive, the purpose, the intent of [if the State's evidence is to be believed], that the victim was removed from one place to another, so to speak, according to the indictment language, removed a ["substantial distance"] from the vicinity where she was first found, and the removal was with a purpose. That purpose is a part of the kidnapping, first degree kidnapping to ["]facilitate the commission of any crime, or to inflict bodily injury or terrorize["].
We also find that the testimony helped shed light on defendant's actions. See Carter, supra, 91 N.J. at 106; see also Rogers, supra, 19 N.J. at 228.
In an effort to reduce the inherent prejudice in the admission of other-crimes evidence, our Supreme Court has emphasized that such testimony must be sanitized when appropriate. Barden, supra, 195 N.J. at 390. The trial court instructed the State to "sanitize" testimony by removing mention of the robbery. The court found that the robbery charge could distract the jury and could suggest another criminal wrong that would be impermissible. The court also sought to limit "graphic evidence" and to keep the testimony limited for the purpose of establishing defendant's motive to remove the victim in the instant trial to another place in his car.
This is a case, this Court finds, which fits neatly into the 404(b) testimony for purposes of the Cofield Marrero test and for purposes of meeting 404(b) as those circumstances which must be available to permit such admissible evidence can be admitted. The Court is mindful that the principal behind the rule is that the courts should exclude evidence of other crimes, civil wrongs or acts when the evidence is offered solely to establish the forbidden inference of propensity or predisposition. I'm mindful of that. Therefore, the testimony of L.D. will be, for lack of a better term, sanitized to exclude testimony of the robbery to which L.D. testified, and I will ask the prosecutor to limit to the best he can the more graphic evidence that would tend to go outside the boundaries that I've set with respect to the testimony as relates to [A.M.B.]. And I'll entertain objection if it goes over those boundaries.
Given the substantial deference which a reviewing court must accord to this evidentiary ruling we hold that the trial court did not abuse its discretion in admitting the 404(b) evidence. See Covell, supra, 157 N.J. at 564.
Although we have determined that there was no reversible error in the admission of the other-crimes evidence, we are concerned by the extensive presentation of this evidence. When considered with the purpose of the evidence, the proofs should have been more limited. See State v. Roscus, 16 N.J. 415, 423 (1954).
Once the trial court determines that the evidence of other crimes is admissible, in addition to sanitizing the evidence when appropriate, the court must carefully instruct the jury as to its limited use. The instruction should be given when the evidence is presented and in the final charge to the jury. Barden, supra, 195 N.J. at 390.
The judge provided a limiting instruction prior to the 404(b) testimony.
[L]adies and gentlemen, I'm going to give you what is called a limiting instruction. It was referred to, it was referred to by the prosecutor when he opened, talking about two different events. As you know in the indictment, the victim is named [A.M.B.]. You're about to hear testimony involving [L.D.], the second victim.
Now, the evidence that you hear about [L.D.], not only the evidence, not only the comments to the extent you are infected by the comments of the openings and closing of the party, but the evidence you hear about [L.D.] can be used for certain limited purposes. You will hear evidence which relates to the acts or the conduct purportedly of the defendant which is not part of the offenses with which the defendant is charged before you.
You cannot, and I instruct you accordingly, you cannot view this evidence for the purpose of proving that the defendant, Lloyd Lindsey, acted in conformity therewith regarding the charges before you based on the evidence or the testimony you're about to hear. In other words, what you're about to hear will raise
concerns about the conduct of the defendant. You may not consider for purposes of concluding that if he behaved in the fashion that the officer and perhaps [L.D.] or anybody else testifies about [L.D.'s] circumstance, that then the defendant, Lloyd Lindsey, is likely to have committed the offense charged. Succinctly stated, once again, the fact that someone does something at another time is not to be considered proof that he therefore committed a similar act as charged. It's not proof of that. It may not be considered by you in any way, shape or form, to serve of as proof of that. However, you may consider the prior conduct of the defendant as it may relate to some other fact in issue, for example, the motive, the purpose, or the intent of Lloyd Lindsey regarding the charges particularly as they may relate to the alleged kidnapping.
You will eventually consider whether those events were consistent with the defendant's conduct and objective in removing, quote unquote, the alleged victim herein, [A.M.B.]. Once again, it is not introduced to show a tendency or predisposition of the defendant, but only to assist you if you believe the evidence offered by [L.D.] and the events surrounding [L.D.] to determine the purpose, motive or intent of the defendant's acts relating to [A.M.B.].
Now, it requires a little bit of mental gymnastics. But it's just to eliminate the notion of the second time. No predisposition. No tendency. But you may consider, when considering the scope of events testified to, you may consider the events regarding [L.D.] as going to the proof of motive or the intent or the purpose of the actor as it may relate to that as similar purposes or motives with respect to the charges before you. I may repeat this
again if it becomes appropriate at the time, but right now, take all of the [L.D.'s] testimony and understand it for that purpose.
Upon L.D. being called as a witness, the court instructed the jurors:
Ladies and gentlemen, you will keep in mind, I'm sure, my admonition respecting the limitations on [L.D.'s] testimony. Again, I just want to repeat it because we are getting a number of witnesses before the final matter of [A.M.B.]. So just remember that the testimony does not in any way indicate or should not or cannot indicate a predisposition or tendency in any respect to be proof against this defendant for acts later testified to. It can be used, as I said, for motive, purpose or intent in this regard as to what happened with [L.D.] vis-à-vis what happened with [A.M.B.]. It's a mental gymnastic kind of situation, but I'm sure you're going to be able to handle it.
The judge provided the following instruction during the jury charge:
Now, there has been that specific evidence which I've introduced in this case which you will recall, and I gave you instruction both prior to the time it was introduced and at that time it was introduced, which relates to the acts or conduct of the defendant which are not part of the offenses with which the defendant is charged in this case. You cannot, and I instruct you accordingly, you cannot view this evidence for the purpose of proving that the defendant, Lloyd Lindsey, acted in conformity regarding the charges before you based on that evidence or the testimony you've heard.
Now, this involves some degree of mental, as I described, mental gymnastics, in other words, what you've heard has raised some concerns about other conduct of the defendant with regard to his past contact with [L.D.]. You may not consider for the purposes of concluding that if he behaved in the same fashion as testified to in the past, that is even though it's not in the past regarding the time in which the two events occurred, it was in the past as far as this trial was concerned, you can't consider that just because he testified — he behaved in a fashion in the past, then he did it again as charged. Succinctly stated, the fact that someone does something on a prior occasion is not proof that they did it this time. However, you may consider the prior conduct of the defendant as it may relate to some other fact in issue, for example, the motive, the intent, the purpose of Lloyd Lindsey regarding the charge, charges with which he is confronted in this court today, particularly as they may relate to the alleged kidnapping.
While trial counsel for defendant noted a continuing objection to the admissibility of this evidence, there was no objection to the limiting instructions. Therefore, we consider the error in the instructions, if any, under the plain error rule, under which defendant must show the error was clearly capable of producing an unjust result. R. 2:10-2. We note, however, that an erroneous charge will rarely stand on the ground that any error was harmless. State v. Weeks, 107 N.J. 396, 410 (1987).
We hold that these instructions sufficiently explained the prohibited purposes and the permissible purposes of the evidence offered. The instructions, though arguably not "pristine," were not erroneous. State v. Oliver, 133 N.J. 141, 148 (1993); G.S., supra, 145 N.J. at 472; Barden, supra, 195 N.J. at 394.
Even if we held that the admission of other-crimes evidence was in error, given the substantial proofs offered by the State during trial, any error would be harmless. See State v. Walker, 203 N.J. 73, 90 (2010). There was compelling proof to support a finding of guilt beyond a reasonable doubt, independent of the other-crimes evidence. This proof encompassed A.M.B.'s largely unrefuted testimony detailing the events of her abduction and sexual assault, her identification of defendant as the perpetrator, the testimony of the owner of the vehicle linking its use by date and time to defendant, forensic evidence from the crime scene, and undisputed DNA evidence from the clothing of the victim which matched defendant. Notably, defendant's trial counsel argued that the DNA evidence made the State's case so strong that it was unnecessary to introduce the other-crimes evidence.
Defendant argues as well that he suffered from a mental incapacity that counsel failed to pursue during her representation. Other than defendant's assertion that he suffered from an unspecified mental disorder, he has not presented any other evidence in his PCR petition to support his claim. Defendant did not provide expert testimony regarding his mental incapacity before the PCR court, and does not here. Cf. State v. Jack, 144 N.J. 240, 254 (1996) (noting the necessity of establishing a prima facie case of ineffective assistance of counsel by presenting "expert or otherwise qualified testimony" to support contentions). We find defendant's claim of ineffective assistance of counsel on this basis to be wholly unsupported and without merit.
Defendant further alleges ineffectiveness of counsel relative to his plea agreement. It is undisputed that defendant's conviction after trial exposed defendant to a potential sentence of life imprisonment with a thirty-year term of parole ineligibility. The trial court advised defendant of the potential for imposition of this sentence. The trial court also informed defendant that it would likely impose a consecutive life sentence, in the absence of a plea agreement, if defendant was convicted on the second indictment. The State's proofs at the trial of the second indictment would be forceful. Any objective analysis would conclude that there would be the likelihood of conviction. When viewed in the prism of the sentence the court could impose upon conviction on the second indictment, i.e., a consecutive life sentence resulting in an aggregate sixty-year parole ineligibility, the argument that defendant's counsel was ineffective by negotiating a plea on his behalf is unavailing. This is especially so in light of the plea agreement which resulted in defendant receiving an aggregate sentence of twenty-five years on both indictments, subject to mandatory eighty-five percent parole ineligibility.
Although defendant was not advised by the judge or counsel that his waiver of appeal was "retractable" at a price, the record does not support a finding that there would be a reasonable probability of a different result. Even in the absence of an evidentiary hearing to determine defense counsel's "strategy," the rationale for counsel's advice to defendant to accept the agreement is readily discerned from the record. The defendant would serve thirty years without parole alone on the charges for which he had been convicted at trial. This parole disqualification period would exceed by eight years the parole disqualification period on his sentences on both indictments under the agreement. If convicted of the crimes charged in the second indictment, defendant faced the prospect of a sentence of approximately three times the bargained-for term. In sum, we do not find that defendant was "pressured" into accepting the agreement.
Finally, we address the court's determination to dispense with an evidentiary hearing. The PCR court held that "the defendant failed to prove by a preponderance of the credible evidence that his counsel's performance fell below the objective standard of reasonableness and that, but for his counsel's substandard performance, there would be a different outcome in his case." The court has discretion to make this decision, "if the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether defendant is entitled to post-conviction relief, or that defendant's allegations are too vague, conclusory or speculative to warrant an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158 (citing State v. Preciose, 129 N.J. 451, 462-64 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d. 88 (1997). From our review of the record, and extending to defendant all favorable inferences, the judge's decision to forego an evidentiary hearing was not mistaken.
We conclude our analysis by repeating those precepts that guide reviewing courts in determining "ineffective assistance of counsel" claims. Effective representation is not synonymous with errorless representation. An attorney may give advice that in the lens of hindsight was debatable or even erroneous. For any error by counsel to be constitutionally significant, it must undermine the fundamental fairness of the proceeding. Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697. The competency standard enunciated by Strickland is both broad and flexible. Ibid. It is intended to encompass varied factual scenarios and circumstances. The proper test is whether counsel's advice was within the range of competence required of attorneys in criminal cases. While attorneys are expected to fulfill their duty of competent representation, a conviction should not be overturned unless there was a breach of that duty that mattered. To the extent that counsel breached her duty to defendant by not advising him of his right to file an appeal, or by not filing an appeal, we hold the breach did not matter since there is not a reasonable probability of a different result sufficient to undermine our confidence in the outcome.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION