Opinion
DOCKET NO. A-3651-13T1
04-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. M.Z.Z., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-12-4094. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
I
On December 19, 2007, defendant M.Z.Z. was indicted for two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one and three); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts two and four); and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts five and six). The indictment also charged defendant's wife, X.Z.Z., with second-degree endangering the welfare of a child, N.J.S.A. 2C:44-4(a) (count seven).
Specifically, count one alleged defendant had anal intercourse with his daughter, L.Z., on August 22, 2007, when she was less than thirteen years of age; count two alleged he endangered her welfare on this date. Count three alleged defendant had anal intercourse with L.Z. on diverse dates between September 2004 and August 21, 2007; count four charged him with endangering her welfare during this period. Count five charged him with sexual contact by intentionally touching L.Z.'s vagina on diverse dates between September 2004 and August 21, 2007; count six charged him with sexual contact by intentionally touching L.Z.'s buttocks during the latter period. The seventh count charged X.Z.Z, the victim's mother, with endangering L.Z.'s welfare by failing to take the steps necessary to protect L.Z. from defendant's sexual abuse.
On March 12, 2009, the jury acquitted X.Z.Z. of endangering the welfare of a child. On March 17, 2009, a jury found defendant not guilty of first-degree aggravated assault, N.J.S.A. 2C:14-2(a)(1) (count one), but on this count did find him guilty of the lesser-included offense of second-degree sexual assault, N.J.S.A. 2C:14-2(b), by engaging in sexual contact in the form of intentionally touching L.Z.'s buttock or anal area. Defendant was also found guilty of two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:44-4(a), on August 22, 2007 and between September 2004 and August 21, 2007 (counts two and four). He was acquitted of all other charges.
On July 17, 2009, the court sentenced defendant to an aggregate fifteen-year term of imprisonment, with an eighty-five percent period of parole ineligibility. Specifically, defendant was sentenced to an eight-year term of imprisonment on count one, with an eighty-five percent period of parole ineligibility, and parole supervision for three years. On count two, he was sentenced to an eight-year term of imprisonment concurrent to the sentence imposed on count one. On count four, he was sentenced to a seven-year term of imprisonment consecutive to the sentences imposed on counts one and two.
Defendant filed a direct appeal from his convictions and sentence. In an unpublished opinion we affirmed his convictions but remanded for resentencing on counts one and two. State v. M.Z.Z., No. A-6280-08 (App. Div. January 3, 2011). On March 18, 2011, the court reconsidered but imposed the same sentence. On March 29, 2011, the Supreme Court denied defendant's petition for certification. State v. M.Z.Z., 205 N.J. 318 (2011).
The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here. We summarize only the procedural history and evidence that is pertinent to the issues on this appeal.
At trial, child abuse investigator Amy Pisano of the Gloucester County Prosecutor's Office testified that, on August 22, 2007, she responded to defendant's home after she received a call from DYFS advising it had received an anonymous call in reference to an eleven-year old female who possibly had been sexually assaulted by a family member. After she arrived at defendant's home, Pisano spoke to L.Z., then eleven years of age, in private.
DYFS stands for Division of Youth and Family Services, renamed the Division of Child Protection and Permanency, effective June 29, 2012.
As a result of that conversation, Pisano conducted a videotaped interview of L.Z. on August 23, 2007. The videotape of the interview was introduced and played before the jury. During the interview L.Z. reported that, on August 22, 2007, she had been sleeping in her room when she awoke to feeling her father's penis touching the skin on her "back." When asked what her "back" was, L.Z. pointed to her buttocks. She described her father's penis as feeling "slimy." She was unable to remember if he had touched the inside or outside of her "back part," but admitted she had told Pisano the day before that her father had put his penis in her "back hole."
Because the camera was improperly positioned, only that portion of L.Z.'s face below her eyes is visible on the videotape.
L.Z. claimed her father had engaged in the same conduct when she was in the fourth and fifth grade, but she was unable to remember if he had done so when she was in the third grade. (On August 23, 2007, L.Z. was about to start the sixth grade.) Her father had never, however, touched her "front part" or chest.
After her videotaped interview, L.Z. was examined by Monica Weiner, M.D., a child abuse pediatrician. Dr. Weiner was called by the State at trial. During Dr. Weiner's direct examination, the prosecutor sought to elicit what L.Z. told the doctor, but the court sustained X.Z.Z.'s objection on hearsay grounds. Notwithstanding, Dr. Weiner testified that she questioned L.Z. and learned the "offender's" penis had contacted the child's anus, but it was not clear to Dr. Weiner if there had been any anal penetration.
On cross-examination, defendant's trial attorney elicited that the findings on physical examination were within normal limits, that L.Z. never claimed she had been touched on or that "anything" had been inserted into her "front part," and that it was not clear "any penis" had ever contacted L.Z.'s genitals.
On redirect examination, the prosecutor asked Dr. Weiner, in essence, to disclose other information the child had revealed. The defendant's attorney objected, arguing she had confined her questions to ascertaining whether the offender had touched limited, specific body parts and, thus, defendant had not opened the door to the prosecutor eliciting any other information Dr. Weiner learned from the child. The court disagreed and overruled defendant's objection.
Dr. Weiner then testified L.Z. revealed that, two days before, defendant "stuck his penis into the back hole." When the doctor asked the child where the back hole was, the child pointed to her buttocks. L.Z. also indicated her father had engaged in such conduct since she had been in the second grade. On re-cross-examination, Dr. Weiner reported the child claimed to have had her clothes on during the August 22, 2007 incident.
On October 19, 2007, Pisano conducted another videotaped interview of L.Z., during which the child disclosed her father started "doing things" when she was in the second grade. L.Z. claimed her father touched her "back part" with his penis and her "front part" with his hand and penis. When she developed breasts at the end of the third grade, her father began to touch them with his hands. The videotape of that interview was admitted and played for the jury during the trial.
L.Z. also testified at trial. She said the night before DYFS came to her home, she woke up at 1:00 or 2:00 a.m. because she felt her father touching her. Her pants and underwear were off, and her father "had been putting his penis in my backhole," but he stopped when she woke up. She testified further that defendant "would stick his penis in my back part" when she was in the third, fourth, and fifth grades. She clarified "back part" meant "butt hole." On cross-examination, she testified her father punished her by putting her in the basement, where it was dark.
L.Z.'s brother, R.Z., who is two years younger than L.Z., testified that on three occasions L.Z. told him that "something happened" between her and their father. On cross-examination, R.Z. acknowledged that his father punished him by making him put his hands over his head while he kneeled for a "long time," or by hitting him. Defendant also testified, denying he ever touched his daughter in any kind of sexual manner.
X.Z.Z.'s attorney was the first to give a closing argument, during which he attacked the child's credibility by detailing the differences among the child's accounts of what occurred between her and her father, noting that the child's allegations expanded after her initial statement to the police. The attorney urged the jury to listen to and analyze the child's statements.
Defendant's counsel also attacked the child's credibility during her summation by noting the discrepancies among the child's different reports, but did not do so as extensively as the co-defendant. However, defendant's counsel explained the co-defendant "spent a good deal of time talking about the first statement and the second statement . . . And I don't think I need to go over [that] again[.]"
During deliberations, the jury asked to review in the jury room the videotapes of the child's two pretrial statements, as well as the child's and defendant's trial testimony. Defendant did not object to the jury's request but did object to the jury reviewing the videotapes in the jury room, arguing case law required the videotapes to be reviewed in open court.
The court allowed the jury to have the videotapes of the child's two pretrial statements in the jury room, along with a DVD player. As for L.Z.'s and defendant's trial testimony, the court told the jury that if it wanted to view a specific portion of either witness' testimony, it had to specify what it wanted and the testimony would be played back in the court room. The videotapes of L.Z.'s pretrial statements were in the jury room for approximately ninety minutes (in the aggregate the two tapes are eighty-three minutes in length) when the jury announced it had reached a partial verdict. After announcing that verdict, which acquitted X.Z.Z. of the one charge against her, the jury was excused for the day.
The trial was conducted in a "video courtroom," where all witnesses were video-recorded.
Before the jury resumed deliberations on the next trial day, the court told counsel it had erred by allowing the jury to have the child's pretrial statements in the deliberation room, citing State v. Burr, 195 N.J. 119 (2008). The court advised it had removed the DVD player from the jury room, and to offset any prejudice in the event the jurors did view the videotapes of the child's pretrial statements in the jury room, the court determined the jury would view in the court room the entire trial testimony of both the child and defendant before it resumed deliberations.
In Burr our Supreme Court held that when a jury has requested to review a videotaped pretrial interview, the trial court must first ask the jury if it would be satisfied with a read back of statement. If the jury wants to hear the entire videotape, "the court must determine whether the jury must also hear a read back of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback." Id. at 135. The playback of any videotape is to take place in open court. Ibid. --------
Just before it reviewed that testimony, the court instructed the jury that, because it had given the jury the videotapes of the pretrial statements, "the law . . . requires you to review, that we should play for you the court testimony from the same witness and any cross-examination. The purpose of this is because you shouldn't give any overemphasis on one piece of evidence as opposed to the rest of the evidence, you should consider it in total." The jury then viewed the entirety of the child's and defendant's testimony.
As previously noted, the jury found defendant not guilty of aggravated sexual assault on count one, which required evidence of penetration on August 22, 2007, but found him guilty of the lesser-included offense of second-degree sexual assault, which required a finding of criminal sexual contact on that date. Specifically, according to the verdict sheet, the jury found defendant guilty of sexual contact in the form of touching the child's buttock or anal area on August 22, 2007.
The jury also found defendant guilty of second-degree endangering the welfare of a child for both the specific date of August 22, 2007 and the period from September 2004 and August 21, 2007. He was acquitted of aggravated sexual assault and sexual assault in the form of engaging in anal intercourse or touching L.Z.'s vagina and buttocks from September 2004 through August 21, 2007.
On January 4, 2012, defendant filed a PCR petition; subsequently, a brief and amended petition was submitted on his behalf by counsel. By order dated September 23, 2013, the PCR court denied defendant's request for relief without an evidentiary hearing.
Defendant presents the following issues for our consideration in his appeal.
POINT I - DEFENDANT ESTABLISHED A CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND THE COURT BELOW ERRED IN DENYING POST-CONVICTION RELIEF ON THIS ISSUE.
A. The Standard Of Review Is De Novo.
B. Defendant Established Ineffective Assistance Of Appellate Counsel Because Appellate Counsel Failed To Raise The Issue Of The Jury's Unfettered Access To The Videotaped
Statements Of L.Z. In The Jury Room On Direct Appeal.
POINT II - DEFENDANT PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS PCR PETITION, THEREFORE, THE COURT BELOW ERRED IN DENYING HIS REQUEST FOR AN EVIDENTIARY HEARING AND ITS RULING SHOULD BE REVERSED.
A. The Trial Counsel Was Ineffective In "Opening The Door" To -- Or Otherwise Allowing -- Volumes Of Hearsay Testimony By Multiple Witnesses To Be Introduced And Admitted Into Evidence, Including That By Dr. Weiner That L.Z. Told Her That Defendant Had Committed The Criminal Acts Charged.
B. Trial Counsel Was Ineffective In Introducing Substantial Other Bad Acts Testimony That Defendant Used Extreme And/Or Abusive Methods Of Punishment Regularly On His Children.
We are not persuaded by any of these arguments and affirm.
POINT III - DEFENDANT PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN HIS PCR PETITION, THEREFORE, THE COURT BELOW ERRED IN DENYING HIS REQUEST FOR AN EVIDENTIARY HEARING AND ITS RULING SHOULD BE REVERSED.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must establish that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to the extent there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
The Strickland test applies to claims of ineffective assistance of appellate counsel. State v. Loftin, 191 N.J. 172, 197-98 (2007). However, appellate counsel is not required to raise every argument a defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983). Indeed, "[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994.
Here, defendant contends appellate counsel was ineffective for failing to raise on direct appeal the fact the trial court permitted the jury to have access to the two videotapes of L.Z.'s pretrial statements in the jury room, in violation of the holding in Burr, and thus deprived defendant of a fair trial. We reject this argument.
Defendant's counsel used the inconsistencies among the child's pretrial statements and trial testimony to defendant's advantage, arguing the discrepancies exposed L.Z.'s lack of credibility and made her accusations unreliable. It was implicit in defendant's attorney's summation she wanted the jury to study or at least consider the child's statements and testimony so it could appreciate the variations in the child's allegations which, as counsel pointed out, escalated every time the child gave a new account of what allegedly had occurred.
It would have been fruitless if not illogical for appellate counsel to have argued on appeal defendant was or may have been prejudiced by the trial court's error. Defendant's interests were clearly furthered by having the jury scrutinize the statements in the hope the inconsistencies would dilute the strength of the State's case, if not convince the jury the State failed to prove defendant's guilt beyond a reasonable doubt. See State v. Weston, 222 N.J. 277, 296 (2015) (holding jury's access to witness' videotaped statement during deliberations did not deprive defendant of a fair trial where he presented the statement to the jury, his counsel affirmatively relied upon the statement in summation, and the statement had the potential to undermine the witness' incriminating trial testimony about defendant).
Moreover, although the jury accepted the child's claim in the August 23, 2007 statement that defendant's penis contacted her buttocks or anal area on August 22, 2007, the jury rejected the assertion defendant had penetrated her anus either on or before August 22, 2007. If is also evident the jury did not accept L.Z.'s claim in her October 19, 2007 statement that defendant touched her vaginal or anal area before August 22, 2007. Without question, the jury rejected L.Z.'s trial testimony that from the time she was in the third grade to August 22, 2007, defendant engaged in anal intercourse with her.
We are satisfied from our review of the record defendant failed to make a prima facie showing appellate counsel was deficient for failing to argue on appeal that the trial court had erred by allowing the jury to have the videotaped statements during deliberations. Defendant did not demonstrate there was a reasonable probability that, but for appellate counsel's alleged error, the result of the proceeding would have been different. See Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Defendant next contends it was error for trial counsel to have cross-examined Dr. Weiner in a manner that allowed the prosecutor to elicit from the doctor on redirect examination that the "offender" was defendant and that the child accused him of anal penetration. "In matters of trial strategy, we accord great deference to the decisions of counsel[.]" State v. Biegenwald, 126 N.J. 1, 56 (1991). "Which witnesses to cross-examine and the nature of the questions asked fall within this broad zone of attorney discretion." State v. Hightower, 120 N.J. 378, 432 (1990).
Here, counsel's clear strategy was to draw out information beneficial to the defense, which she succeeding in accomplishing. Further, the subject testimony on redirect examination — that defendant had engaged in anal penetration with L.Z. — was not, in the final analysis, damaging to defendant. It was clear defendant was the alleged perpetrator. More important, the jury rejected the child's claim he had penetrated the child in any respect.
Defendant maintains trial counsel was ineffective for failing to object on hearsay grounds to Pisano's testimony that DYFS had received an anonymous call claiming an eleven-year old female possibly had been sexually assaulted by a family member. Defendant similarly argues trial counsel was deficient for not objecting, also on hearsay grounds, to L.Z.'s brother's comment that L.Z. told him that "something happened" between her and her father. Even if Pisano's and the brother's comment constituted inadmissible hearsay, their testimony was too vague and nonspecific to have altered the outcome of the trial. See Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. Thus, the second prong of the Strickland test due to trial counsel's alleged error cannot be met.
Finally, defendant faults trial counsel for drawing out from both L.Z. and R.Z. the manner in which he punished them, arguing such testimony was "prejudicial bad acts testimony." We disagree. As part of her trial strategy counsel endeavored to impeach both children by suggesting they had a motive to lie; specifically, that L.Z. had fabricated her accusations in retaliation for defendant's punishment of her and her brother. Defendant's challenges merely attack reasonable trial strategy and fail to establish ineffective legal assistance.
To the extent any argument raised by defendant has not been explicitly addressed in this opinion, it is because we are convinced the argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Satisfied from our review of the record defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test, we conclude the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION