PER CURIAM.
Defendant, Askia Nash, appeals from an order denying post-conviction relief (PCR), following our remand of the matter to the trial court and a three-day evidentiary hearing. On appeal, defendant makes the following arguments:
Defendant, the librarian at Newark's Morton Street Elementary School, was accused of digitally penetrating a twelve-year-old male special needs student, J.B., while in a school bathroom, and fondling the buttocks of another juvenile, K.L., while in the library. Following trial, defendant was convicted of two counts of first-degree aggravated sexual assault against J.B.,
This appeal arises out of a petition for PCR filed by defendant that was denied without an evidentiary hearing. On appeal, we remanded the matter back to the trial court for an evidentiary hearing on allegations of ineffective assistance of trial counsel and prosecutorial misconduct while retaining jurisdiction over the case.
To put the matter in context, we set forth the facts as contained in our 2009 opinion.
At trial, an examining pediatrician testified that, after J.B. complained to his mother regarding defendant's assault, the doctor observed J.B.'s rectum to be red, that a tear existed between the six and eight o'clock positions, and that the sphincter was relaxed. She stated that all findings were consistent with sexual abuse, and she ruled out other natural causes for her findings.
In denying post-conviction relief in 2007, the PCR judge observed that the jury was convinced by the physical evidence of injury and by J.B.'s "exceptional" credibility, stating "he was too slow to be a good liar." The judge found K.L. to have been similarly credible.
On appeal from the 2007 denial of PCR, defendant focused on issues surrounding his conviction for sexually assaulting J.B. In that connection, we found that defendant had offered prima facie evidence of prosecutorial misconduct arising from the presentation of misleading testimony by Gregory on the subject of the assignment of an aide to J.B. Slip op. at 10. Additionally, we found that defendant had made a prima facie showing of ineffective assistance of counsel in failing to call St. Louis as a witness, failing to raise with either St. Louis or Sharp-Conte the lack of corroborative proof through conduct on J.B.'s part that he had been sexually assaulted by defendant, and failed to raise with either Sharp-Conte or Gregory the fact of St. Louis's assignment to J.B. as his monitor.
On remand, because the judge who had previously conducted the trial and had heard defendant's PCR petition had been transferred to a different county, the matter was assigned to a new judge. Hearings took place on February 18, 2010, March 3, 2010 and March 4, 2010, at which time testimony was given by the defense trial counsel, the trial prosecutor, St. Louis, Sharp-Conte, and Vanessa Johnson-Shavers, another school aide. Gregory was deceased.
Defense counsel testified that he was admitted to the Bar in 1988, and that his practice focused on criminal matters. He stated that, from the outset, defendant claimed that he could not have been guilty of the crimes against J.B., because the child was always escorted around the school building. To obtain support for that position, counsel contacted his "number one ace in the hole," St. Louis, the person whom defendant identified as J.B.'s aide. St. Louis refused to become involved in the matter. When counsel stated to her that she could be subpoenaed, St. Louis stated: "[I]f you subpoena me and I come to trial, I'm going to say things about your client that you're not going to like . . . and they're not going to be helpful at all." Although St. Louis refused to give specifics, counsel determined that the risk of adverse testimony was too great, and he decided not to use St. Louis as a witness.
When, during the PCR hearing, counsel was shown St. Louis's 2004 statement given in connection with the civil litigation, he testified:
Special needs resource teacher, Ida Jenkins was also identified by defendant as a potential witness, but when contacted, she confirmed the truth of a prior statement by her to Sharp-Conte that she was having problems with defendant "because he keeps taking children out of the classrooms." Counsel did not speak to the third witness suggested by defendant, former vice-principal Mary Ann Torelli, because she did not respond to his attempts to contact her.
Thereafter, defendant also suggested as a witness Vanessa Johnson-Shavers, a woman who assisted defendant in the library as an aide. Although she was willing to testify on defendant's behalf, when asked what procedure was used when children requested to go to the bathroom, she responded "we gave them a pass," and she denied that they were escorted. Her testimony therefore would not have aided defendant's cause.
Additionally, counsel attempted to interview J.B.'s homeroom teacher, Sharp-Conte, a person identified as a State's witness, but she refused to speak with him. However, counsel knew that, in a pre-trial statement given to the prosecutor on October 12, 2000, Sharp-Conte had mentioned that J.B.'s mother had informed her that defendant had borrowed twenty dollars from J.B. and had not returned the money. Further, J.B.'s mother had stated that she did not want J.B. in the library except when he was scheduled to be there, and Sharp-Conte informed J.B.'s mother that if J.B. was not where he was supposed to be, she would inform her. Sharp-Conte also informed the prosecutor that, the day after her conversation with J.B.'s mother, J.B. was found in the hallway with a friend when they were not supposed to be there, and that this was not the first time that he had been found roaming the halls. Sharp-Conte confirmed in her statement that the school had special needs aides, but she stated that there was no aide for J.B.'s group.
This statement, counsel contended, would be used by the State if counsel suggested in cross-examining Sharp-Conte that J.B. was always accompanied by an aide. Counsel testified:
Concerning counsel's failure to call Gregory as a witness on defendant's behalf, counsel testified that he was listed as a State's witness and that he refused to talk to defense counsel. Further, counsel had been provided by the State in discovery a copy of the statement that Gregory had provided to it on October 13, 2000, as well as documents generated by Gregory and other members of the school's administration. In his statement, Gregory detailed the procedures required to take a child out of a class, and he noted that defendant failed to follow those procedures in connection with the second victim, K.L. Counsel also noted a further statement by Gregory that "as of this week, two teachers have brought to my attention their concerns over Mr. Nash detaining students without first receiving permission from them." Among those teachers was Sharp-Conte. A 1998 memo from the vice-principal also complained about defendant improperly removing children from their classrooms. Although defendant maintained that the principal had a grudge against him, there was documentary evidence that Gregory's concerns were valid. A number of memos indicated that Gregory had warned defendant about his excessive tardiness and absenteeism, and evidence existed that defendant had falsified his time records — a matter relevant to defendant's credibility. Further documents noted defendant's poor work performance and need for improvement.
As the result of this evidence, when Gregory testified on rebuttal that the school had only one aide, and that aide was not assigned to J.B., counsel determined that he was unable to attack Gregory's testimony as biased. Counsel was unaware that the school utilized both personal and classroom aides and was not informed of that fact by defendant. He learned of the two types of aides just a few days before the PCR hearing.
In summary, counsel stated:
Indeed, at the PCR hearing, it was brought out that in his trial testimony defendant had admitted the absence of an adult escort for special needs students requesting to use the bathroom. On direct examination at trial, defendant testified:
Although defendant testified that J.B. had an aide, St. Louis, who escorted him everywhere, defendant suggested otherwise when he said the reason for the aide was because of J.B.'s "reputation of running the hallways."
In addition to testimony by defense counsel, the assistant prosecutor who had conducted defendant's trial testified at the PCR hearing. She stated that, at the time of trial, she was unaware that J.B. was assigned an aide of any sort. Further, she was unaware that there were two types of aides in the school and was unaware of any inaccuracies in the principal's testimony. It was the prosecutor's impression that "teachers and whoever it was, didn't even know where [J.B.] was at times. He was roaming the halls and that was an issue."
The prosecutor stated that she only became aware of the possible presence of an aide assigned to J.B. when defendant testified.
To rebut defendant's testimony, the prosecutor called Gregory. Although in questioning him, she spoke generally about school aides, Gregory's response in fact concerned only "personal aides." However, the prosecutor was unaware of the distinction that Gregory had made. The prosecutor denied ever being told that St. Louis was assigned to J.B. Further, she was unaware that Sharp-Conte's testimony at trial was not consistent with the statement given in support of summary judgment in the civil litigation. The prosecutor adamantly denied she would ever have withheld exculpatory evidence from the defense or manipulated testimony in order to obtain a conviction.
During the PCR hearing, testimony was also given by St. Louis, who denied that she had ever refused to testify or that she had threatened to offer negative testimony against defendant. St. Louis confirmed that she was assigned as J.B.'s personal aide in early 2000 after he had tried to escape out a window and had been found on a ledge, and she continued in that capacity until J.B. left the school.
However, Sharp-Conte testified otherwise. Although she had stated in her 2004 certification that St. Louis served as J.B.'s aide at the time of the alleged assaults, in a deposition given in connection with the civil litigation, she testified that St. Louis was assigned to J.B. for only "a few months" during the 1999-2000 school year. On cross-examination at the PCR hearing, she was asked to clarify her understanding of whether St. Louis was assigned to J.B. at the time of defendant's alleged criminal acts in October 2000. In that connection, the following exchange occurred.
Yet, after this testimony, when questioning centered again on Sharp-Conte's 2004 certification, she affirmed that St. Louis remained assigned to J.B. during the 2000-2001 school year. She also reiterated her conclusion that J.B. was a pathological liar. As a result, she believed that it was unlikely that defendant had assaulted J.B. in the second-floor bathroom as alleged. Sharp-Conte could not explain why she had not mentioned St. Louis's assignment to the prosecutor or why she had not otherwise suggested either to the prosecutor or the trial judge that defendant might be innocent.
The final witness at the PCR hearing was defendant. He testified that he urged counsel to call St. Louis as a witness, but that counsel had refused to do so because "she [St. Louis] didn't want to be bothered" and because he did not want to spend money on a subpoena. Defendant also sought testimony from Torelli, who was vice-principal at the school during the year before the alleged assaults, and from Ida Jenkins, a resource teacher, regarding a conversation between the two women, in which they agreed that St. Louis should remain assigned to J.B. in the 2000-2001 school year. Defendant did not request the testimony of Gregory, whom he regarded as "being down" on him, and he was surprised when Gregory was called by the State on rebuttal. Regarding Gregory's testimony, defendant stated that he was unaware that there was a difference between a personal aide and a classroom aide. Although, after Gregory's testimony, defendant requested that counsel call St. Louis, he refused to do so.
It was disclosed in connection with the PCR hearing that, following trial, defendant's father retained a new lawyer to file a motion for a new trial on defendant's behalf alleging ineffective assistance of counsel. In connection with that motion, the new lawyer obtained affidavits from Vanessa Johnson-Shavers, Mary Ann Torelli, and Crystal St. Louis. St. Louis stated that she was the aide, assigned by Gregory, that regularly supervised J.B. in his instructional classes. Torelli stated that St. Louis and Johnson-Shavers "worked with and sometimes supervised" J.B. Johnson-Shavers stated that J.B. generally was not permitted to go to the bathroom during an activity period, having been escorted there prior to such a period. All three affiants stated the opinion that J.B. was not truthful, whereas defendant was. They stated additionally that J.B. was "closely supervised by, or in the company of, teachers and/or aides and/or other students at all times, including when he went to the door of any bathroom." Additionally, they stated that they had never seen defendant on the second floor of the school where the assaults allegedly occurred.
Defendant's new attorney additionally obtained testimony by psychologist, Dr. Frank Dyer regarding J.B.'s childhood schizophrenia, a condition that was diagnosed in 2002, and the negative impact it would have had on J.B.'s ability to tell the truth; offered evidence of his delinquency; and argued that one of the jurors had worked with defendant in the past. After considering the evidence, the trial judge denied the new trial motion.
Additionally, in 2005, a second new trial motion was filed on the basis of newly discovered evidence after the 2004 certifications in support of summary judgment were made known to defendant.
At the conclusion of the PCR hearing, the PCR judge issued a lengthy opinion denying PCR. After detailing the procedural history of the case and the testimony of the witnesses at the PCR hearing, the judge turned first to defendant's claim of ineffective assistance of counsel. In that connection, the judge stated that his overall impression of counsel "was that of a highly principled attorney trying to give his candid testimony." He found counsel to have been "highly credible."
The judge rejected St. Louis's testimony denying that she had refused to testify on defendant's behalf and threatened, if subpoenaed, to testify negatively regarding him, accepting instead counsel's version of what had occurred and agreeing that in the circumstances presented, it seemed "a most prudent decision" not to call her as a witness. The judge also accepted counsel's explanation of why he did not question Sharp-Conte regarding the presence of an aide, and his justification for not challenging Gregory's rebuttal testimony denying that J.B. was assigned a personal aide.
Adopting the standards for PCR established in
Turning to the issue of prosecutorial misconduct, the judge found on the basis of the testimony given at the PCR hearing that "the prosecutor neither intentionally nor inadvertently failed to disclose evidence to the Defendant." He stated:
Moreover, the judge found the record demonstrated that, in examining Gregory, the prosecutor did not frame her questions narrowly so as to restrict testimony to personal, not classroom, aides. That restriction was supplied, solely and without explanation, by Gregory. Nothing suggested that the prosecutor was aware of the distinction that Gregory had drawn. Thus, evidence that the prosecutor withheld or manipulated evidence was lacking.
As a final matter, the judge found the present PCR proceeding to be procedurally barred by
As the PCR judge recognized, when reviewing a claim of ineffective assistance of counsel, courts must determine (1) whether counsel's performance "fell below an objective standard of reasonableness,"
Although we must defer to the factual findings that form the basis for the PCR judge's determination, we owe no deference to the determination itself.
Our review of the record in this case satisfies us that the PCR judge's factual findings with respect to the performance of trial counsel were well supported by the evidence presented, and that the judge correctly determined that defendant did not overcome the presumption that counsel's conduct was reasonable with evidence that his actions failed to constitute sound trial strategy. In that regard, we are satisfied that counsel conducted a proper investigation to determine whether defendant's defense that J.B. was always accompanied by an aide could be independently supported, and we have been offered no reliable basis upon which to question counsel's assertion that his efforts were rebuffed by St. Louis and Sharp-Conte, the two witnesses most likely to support defendant's position. Further, we are satisfied that the testimony of Ida Jenkins would have been unfavorable to defendant, and that counsel was offered no grounds to conclude that Gregory, if called by defendant, would have given testimony in his favor.
Additionally, we are satisfied that the specter of disclosure of the content the statements given by the State's trial witnesses to the prosecutor, together with other evidentiary materials unfavorable to defendant and his position, substantially curtailed counsel's ability to effectively cross-examine the State's witnesses.
We are mindful that the certifications produced in connection with defendant's motion for a new trial, if produced at an earlier time, would have served to support defendant's case. However, we are satisfied that such material was not available to counsel at the time of trial. Nor was there any way for trial counsel to foresee the content of the certifications given by St. Louis, Sharp-Conte and Gregory in 2004 after they were named as defendants in the civil suit brought on behalf of J.B. We thus find that defendant has failed to meet the first of
As a final matter, we concur with the PCR judge's conclusion that no factual grounds were presented to support a claim of prosecutorial misconduct through non-disclosure of exculpatory evidence or the provision of intentionally misleading testimony.
Affirmed.
