STATE OF NEW JERSEY v. W.B., Defendant–Appellant. (2011)

In 2000, defendant was indicted and charged with various sex offenses committed against four minor children.   At the conclusion of a trial, defendant was found guilty of engaging in unlawful conduct with only one of the four alleged victims, C.K., a female child.   Specifically, defendant was convicted of second-degree sexual assault (count one), N.J.S.A. 2C:14–2b, and third-degree endangering (count two), N.J.S.A. 2C:24–4a.   We affirmed the convictions but remanded for resentencing by way of an unpublished opinion.   State v. W.B., No. A–1368–03 (App. Div. June 27, 2005).   The Supreme Court denied certification, 185 N.J. 296 (2005), and defendant was resentenced to an eight-year prison term subject to a four-year period of parole ineligibility on count one, and a concurrent four-year prison term subject to a two-year period of parole ineligibility on count two.   Defendant's appeal was listed on an excessive sentence oral argument calendar;  we affirmed by order entered on November 14, 2007.

On October 17, 2008, defendant filed a petition for post-conviction relief (PCR).  The PCR judge refused to conduct an evidentiary hearing and denied relief for reasons set forth in a written opinion.   Defendant appealed that determination, presenting the following arguments for our consideration:

I.  THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL FREE FROM THE ADMISSION OF STATEMENTS BY CHILDREN OBTAINED AS A RESULT OF SUGGESTIVE AND COERCIVE QUESTIONING TECH–NIQUES WAS VIOLATED BY TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION FOR A MICHAELS [ 1] ADMISSIBILITY HEARING (NOT RAISED BELOW).

II. THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION FOR A MICHAELS ADMISSIBILITY HEARING, AND TRIAL COUNSEL'S FAILURE TO CALL DR. HALL AS A WITNESS AT TRIAL WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND /FRITZ TEST[ ² ] AND THE ENSUING PREJUDICE TO DEFENDANT SATISFIED THE SECOND PRONG.

III. THE COURT'S RULING DENYING POST–CONVIC–TION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST–CONVICTION RELIEF.

We agree with the argument contained in Point I that defendant should be afforded an evidentiary hearing to develop whether it was reasonable for defense counsel to choose not to seek a pretrial Michaels hearing for the purpose of excluding statements that were allegedly the product of suggestive or coercive interrogative techniques.³  As a result, we need not address the other arguments raised in defendant's appeal at this time.

In Michaels, the Court held that improper or unduly suggestive interrogation techniques in a case such as this permit the conducting of a pretrial hearing into the reliability—and therefore the admissibility—of the child's out-of-court statements and anticipated in-court testimony.   Prior to trial, defendant secured the assistance of an expert, Dr. Kathryn Hall, who opined that the reliability of the child's statements were undermined by, among other things, the lack of investigatory independence, the interviewer's pursuit of a preconceived notion, the use of leading and pointed questions, resort to peer pressure, and the interviewer's belief in defendant's guilt.   Defendant argues that Dr. Hall's pretrial report provided sufficient reasons for challenging the reliability of C.K.'s statements and, indeed, the State has not argued that Dr. Hall did not provide grounds of sufficient substance to warrant a Michaels hearing.   Because such a hearing could have resulted in the exclusion of some or all aspects of C.K.'s earlier statements, or later statements tainted thereby, counsel's failure to seek a Michaels hearing could have prejudiced defendant to the degree required by the Strickland / Fritz test.

Inquiry at the evidentiary hearing required by today's judgment should also be made into the reasons, if any, for trial counsel's failure to seek a Michaels hearing.   The record does not suggest a reasonable strategic basis for declining to do so.

Reversed and remanded for further proceedings in conformity with this opinion.   We do not retain jurisdiction.

FOOTNOTES

FN1. State v. Michaels, 136 N.J. 299 (1994)..  FN1. State v. Michaels, 136 N.J. 299 (1994).

FN2. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984);  State v. Fritz, 105 N.J. 42 (1987)..  FN2. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984);  State v. Fritz, 105 N.J. 42 (1987).

FN3. We recognized that this argument was not asserted or pursued during the PCR proceedings in the trial court.   The State, however, has not argued that we should view that circumstance as a basis for declining to take up the issue now.   Moreover, even if we were to refuse to consider Point I because it was not previously raised in the trial court, it would inevitably lead to proceedings concerning the effectiveness of PCR counsel.   Rather than prolong the proceedings by declining to hear this argument at this time, we deem it more expedient to consider the issue on its merits and, having done so, remand for an evidentiary hearing to develop whether trial counsel's failure to seek a pretrial Michaels hearing was strategic and, if so, whether the tactics employed were reasonable..  FN3. We recognized that this argument was not asserted or pursued during the PCR proceedings in the trial court.   The State, however, has not argued that we should view that circumstance as a basis for declining to take up the issue now.   Moreover, even if we were to refuse to consider Point I because it was not previously raised in the trial court, it would inevitably lead to proceedings concerning the effectiveness of PCR counsel.   Rather than prolong the proceedings by declining to hear this argument at this time, we deem it more expedient to consider the issue on its merits and, having done so, remand for an evidentiary hearing to develop whether trial counsel's failure to seek a pretrial Michaels hearing was strategic and, if so, whether the tactics employed were reasonable.

PER CURIAM