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N.J.S.A. 2C:14-2a(1) (counts one, two and three); seven counts of second-degree sexual assault upon children under
thirteen years old while defendant was at least four years older, N.J.S.A. 2C:14-2b (counts four, five, six, seven, eight,
nine and ten); and seven counts of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts
eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen). "> 46 EDT 2009"> Original Wordprocessor
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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1891-06T41891-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY C. LYNCH,
Defendant-Appellant.
Argued May 19, 2009 - Decided
Before Judges Winkelstein, Fuentes and Chambers.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 91-03-
0489-I.
Ruth Liebesman Martiniuk argued the cause for appellant (Scott D. Finckenauer, on the
brief).
Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (Bruno
Mongiardo, Acting Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on
the brief).
PER CURIAM
On March 22, 1991, a Passaic County Grand Jury returned Indictment No. 91-03-0489, charging defendant, Jeffery
Lynch, with three counts of first-degree aggravated sexual assault upon children under thirteen years old, N.J.S.A.
2C:14-2b (counts four, five, six, seven, eight, nine and ten); and seven counts of fourth-degree endangering the
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welfare of a child, N.J.S.A. 2C:24-4a (counts eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen).
Following numerous pre-trial hearings, in 1993, the court found defendant not competent to stand trial. In 1998,
following additional competency hearings, the court found defendant competent to stand trial.
Defendant was tried to a jury between January 13, 1999, and February 10, 1999. The jury convicted him of two
counts of aggravated sexual assault, five counts of sexual assault, and seven counts of endangering the welfare of a
child. The court sentenced defendant to an aggregate twenty-five-year prison term.
On direct appeal, counsel for defendant raised the following arguments:
I. THE COURT ERRED IN FAILING TO SUPPRESS THE DEFENDANT'S STATEMENT.
A. THE DEFENDANT'S STATEMENT WAS NOT MADE KNOWINGLY, VOLUNTARILY OR
INTELLIGENTLY.
THE DEFENDANT'S MIRANDA[] RIGHTS WERE VIOLATED.
II. THE COURT ERRED IN ADMITTING THE "TENDER YEARS" HEARSAY STATEMENTS OF
L.L., C.L., S.C., AND J.S.
A. THE INVESTIGATIVE TECHNIQUES EMPLOYED RENDERED THE STATEMENTS
INHERENTLY UNRELIABLE.
B. N.J.R.E. 803(c)(27) DOES NOT APPLY TO POST-ARREST STATEMENTS.
III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO
DISMISS THE INDICTMENT FOR VIOLATING THE SIXTH AMENDMENT GUARANTEE
TO A SPEEDY TRIAL.
IV. THE COURT ABUSED ITS DISCRETION IN PERMITTING MIRTA LOPEZ TO TESTIFY WHY
J.M.S. WAS NOT CALLED AS A WITNESS.
V. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR
MISTRIAL BASED UPON THE PROSECUTOR'S VIOLATION OF THE SEQUESTRATION
ORDER.
VI. THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED DEFENDANT OF HIS
RIGHT TO A FAIR TRIAL.
VII. THE TRIAL COURT'S FAILURE TO GIVE THE JURY A REQUESTED SUSCEPTIBILITY
CHARGE, PURSUANT TO STATE v. MICHAELS, DEPRIVED DEFENDANT OF A FAIR
TRIAL.
VIII.THE IMPOSITION OF AN AGGREGATE SENTENCE OF TWENTY-FIVE (25) YEARS WAS
EXCESSIVE AND WAS AN ABUSE OF THE COURT'S DISCRETION.
A. THE COURT ABUSED ITS DISCRETION BY IMPOSING SENTENCES ON
DEFENDANT'S CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT (COUNTS
ONE AND TWO), SEXUAL ASSAULT (COUNTS SIX, EIGHT AND NINE) AND
ENDANGERING THE WELFARE OF A CHILD (COUNT SEVENTEEN) THAT WERE IN
EXCESS OF THE PRESUMPTIVE SENTENCES.
B. THE COURT ABUSED ITS DISCRETION BY RUNNING THE SENTENCES
CONSECUTIVE TO EACH OTHER.
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In addition, defendant contended in his supplemental pro se brief:
I. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO HAVE THE CHILDREN[']S
VIDEOTAPED TESTIMONY AND A MEANS OF PLAYING IT IN THE JURY ROOM AND
VIOLATED THE DEFENDANT[']S SIXTH AMENDMENT RIGHT OF CONFRONTATION.
II. THE PROSECUTOR'S REMARKS IN SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT
TO A FAIR TRIAL.
A. THE PROSECUTOR WAS SPECIFICALLY AND REPEATEDLY WARNED ABOUT
ELICITING THIS INADMISSIBLE HEARSAY.
B. THE PROSECUTOR'S COMMENTS WERE NOT REASONABLY ADDUCED BY THE
EVIDENCE: THEY WERE THE PRODUCT OF FALSE SWEARING BY THE LEAD
INVESTIGATOR ON A CRITICAL ISSUE.
C. THE PROSECUTOR IMPROPERLY COMMENTED ON THE DEFENDANT'S FAILURE
TO TESTIFY.
D. THE FAILURE OF THE PROSECUTION TO FOLLOW THE ORDERS OF THE COURT
AND THE CUMULATIVE EFFECT OF INADMISSIBLE HEARSAY THROUGHOUT THE
TRIAL, ESTABLISHED A PATTERN OF EGREGIOUS PROSECUTORIAL MISCONDUCT
THAT CULMINATED IN THE PROSECUTOR[']S SUMMATION AND DENIED THE
DEFENDANT A FAIR TRIAL.
III. THE IMPARTIALITY OF THE BENCH WAS LOST IN DETERMINING THE ADMISSIBILITY
OF THE EVIDENCE AND DENIED THE DEFENDANT'S RIGHT TO CONFRONTATION.
A. THE IMPARTIALITY OF THE BENCH WAS LOST UPON INTRUDING INTO THE
TESTIMONY OF G.C. AND SUPPLYING CASE LAW FOR THE PROSECUTION TO
INTRODUCE STATE'S EVIDENCE.
B. THE TRIAL COURT ERRED IN ALLOWING NON-DISCOVERY EVIDENCE IN AT
TRIAL.
C. THE TRIAL COURT DENIED DEFENDANT HIS SIXTH AMENDMENT RIGHT TO
CONFRONTATION OF THE THERAPIST AND DYFS WORKER.
D. THE COURT ABUSED ITS DISCRETION UNDER RULE 612. WRITING USED TO
REFRESH MEMORY THE COURT ABUSED ITS DISCRETION IN ALLOWING
INADMISSIBLE EVIDENCE TO BE 'WAVED' BEFORE THE JURY. [SIC]
IV. THE TRIAL COURT ERRED IN ADMITTING THE TENDER YEARS HEARSAY STATEMENTS
OF L.L., C.L., G.C., S.C. AND J.S.
A. THE INVESTIGATIVE TECHNIQUES EMPLOYED RENDERED THE STATEMENTS
INHERENTLY UNRELIABLE. THE PROSECUTOR KNOWINGLY USED FALSE AND
PERJURED TESTIMONY.
B. THE PROSECUTOR FALSELY PROMISED WITNESSES IF THEY GAVE STATEMENTS
THEY WOULD NEVER HAVE TO TESTIFY AT A TRIAL.
C. THE PROSECUTION KNOWINGLY USED FALSE AND PERJURED TESTIMONY
DURING THE MIRANDA ISSUE AND MICHAELS HEARING.
We affirmed defendant's conviction pursuant to Rule 2:11-3(e)(2), concluding that his arguments were not of
sufficient merit to warrant discussion. We further concluded that the motion judge did not err in denying
defendant's motion to suppress; admitting the statements of alleged victims; or denying defendant's motion to
dismiss for violation of his Sixth Amendment rights. The Supreme Court denied defendant's petition for certification,
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171 N.J. 445 (2002), and his motion for reconsideration.
On June 30, 2003, defendant filed a pro-se petition for post-conviction relief (PCR) claiming ineffective assistance of
counsel. On December 1, 2006, following an evidentiary hearing, the court concluded that defendant failed to
establish a prima facie case of ineffective assistance of counsel and denied his PCR petition.
On appeal from the order denying that petition, defendant raises the following points for our consideration:
POINT I
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE 4, PAR. 7 OF THE NEW JERSEY CONSTITUTION.
A. COUNSEL FAILED TO PRESENT RELEVANT EVIDENCE OF DIMINISHED CAPACITY.
B. DEFENSE COUNSEL RELIED ON AN ARGUMENT THAT THEY KNEW WAS LEGALLY IN
ERROR TO CONVINCE DEFENDANT TO WAIVE HIS RIGHT TO TESTIFY AND TO AGREE NOT
TO PUT ON A DEFENSE.
C. COUNSEL ALLOWED THE COURT TO ILLEGALLY QUESTION DEFENDANT ABOUT HIS
RIGHT TO TESTIFY AND THE CONSEQUENCES THEREOF.
D. COUNSEL FAILED TO INVESTIGATE AND BRING TO THE COURT'S ATTENTION
ALLEGATIONS OF WITNESS TAMPERING BY THE PROSECUTION OR TO PRESENT
EXCULPATORY WITNESSES - COUNSEL FAILED TO CALL ROZMARY ROTONDO.
E. COUNSEL FAILED TO CALL CHRIS AND RICHARD LYNCH.
F. COUNSEL FAILED TO INVESTIGATE AND PREPARE FOR THE TESTIMONY OF G.C.; S.C.;
J.S.; J.E.S. AND J.M.L. AND FAILED TO INVESTIGATE OR FILE A SUBPOENA FOR THE DYFS
THERAPIST.
G. DEFENDANT-APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL[;]
COUNSEL'S ADVOCACY IS COMPROMISED FOR THE FINANCIAL INTERESTS OF THE FIRM
AND DISCOVERY VIOLATION THAT RESULTED IN HER OWN APPEAL.
H. COUNSEL IS ACCUSED OF COACHING WITNESSES.
I. COUNSEL'S VIOLATIONS UNDERMINE THE EXCULPATORY TESTIMONY OF C.L.
J. COUNSEL'S CONVOLUTED STRATEGY WITH THE [L'S] AND LACK OF INVESTIGATION
WILL RESULT IN PREJUDICIAL HEARSAY WITH STATE REBUTTAL WITNESS [B.C.].
K. COUNSEL FAILED TO CALL EXCULPATORY WITNESS [E.L.].
(i) FOUR STORIES - FIVE WITNESSES - THREE DATES - ONE EVENT AND THE STATE'S
VIOLATION OF THE SEQUESTRATION ORDER.
(ii) COUNSEL FILED AN APPEAL OF RECORD FOR MEETING WITH [E.L.] - RUVOLDT
TESTIFIES THAT HE NEVER MET HER.
POINT II
THE STATE'S KNOWN USE OF FALSE AND PERJURED TESTIMONY VIOLATED
DEFENDANT-APPELLANT'S FOURTEENTH AMENDMENT RIGHT OF DUE PROCESS AND
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EQUAL PROTECTION UNDER THE LAW AS WELL AS HIS SIXTH AMENDMENT RIGHTS OF
CONFRONTATION AND COMPULSORY PROCESS AND FIFTH AMENDMENT RIGHT TO A
FAIR TRIAL OF THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW
JERSEY.
A. DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
WAS VIOLATED FOR TRIAL COUNSEL'S LACK OF PREPARATION AND INVESTIGATION
AND INEFFECTIVE CROSS-EXAMINATION.
B. TRIAL COUNSEL FAILED TO OBTAIN TRANSCRIPTS TO IMPEACH THE PERJURY OF
INVESTIGATOR MOST.
C. COUNSEL FAILED TO CALL THE DYFS WORKER BEFORE THE JURY COUNSEL'S
ADVOCACY WAS COMPROMISED.
POINT III
DEFENDANT'S STATEMENTS WERE NOT MADE KNOWINGLY, VOLUNTARILY OR
INTELLIGENTLY.
A. DEFENDANT'S MIRANDA RIGHT'S WERE NOT VOLUNTARILY WAIVED.
POINT IV
THE PROSECUTION PUTS FACTS NOT IN EVIDENCE DURING SUMMATION TO THE
VOLUNTARINESS OF A CONFESSION BASED ON PERJURED TESTIMONY AND HEARSAY;
DEFENDANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT OF DUE PROCESS,
EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS UNDER LAW THROUGH
PROSECUTORIAL MISCONDUCT AS WELL AS HIS FIFTH AMENDMENT RIGHTS TO A FAIR
TRIAL OF THE CONSTITUTIONS OF THE STATE OF N.J. AND THE UNITED STATES OF
AMERICA GUARANTEED THROUGH THE DUE PROCESS AND EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.
POINT V
THE TRIAL COURT ABUSED IT'S DISCRETION AND GAVE THE JURY UNLIMITED ACCESS
TO THE VIDEOTAPES OF DYFS WORKER LISA KIRKJIAN'S INTERVIEWS OF THE CHILDREN
IN THE JURY ROOM FOR FIVE DAYS AND TWO HUNG JURIES THEREBY DENYING
DEFENDANT HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION, COMPULSORY
PROCESS, AND RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT AND THE
CONSTITUTION OF THE STATE OF NEW JERSEY GUARANTEED THROUGH THE DUE
PROCESS AND EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.
In light of the record and prevailing law, we affirm substantially for the reasons expressed by Judge Caposela in his
December 1, 2006 written opinion.
I
There were seven young female victims of defendant's crimes. All but one of the victims testified at trial. On direct
appeal, we summarized the relevant facts as follows:
All of the young women's testimony focused largely on three episodes involving
defendant. These episodes occurred on the night of a tornado in late summer 1990;
during a barbeque at the home of Uncle [C.], a relative of defendant, which apparently
took place on Labor Day 1990; and on February 2, 1991. Not all of the girls were
allegedly involved in all of the incidents, although they were together in different
combinations during each of them.
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The alleged victims, during the 1990-91 time period, lived in roughly the same
neighborhood and attended the same school. It is unnecessary to repeat the sordid
evidence in detail. Instead, we will recite certain testimony respecting only a few of the
incidents for which defendant was tried and on which the jury could have predicated
its verdict.
The first involved the tornado in the summer of 1990, when all five girls slept in L.L's
room. When J.E.S. went to bed that night, defendant came into the room, lay down and
rubbed J.E.S.'s back and chest and between her legs. J.S. was sleeping on the bunk bed,
and L.L. and J.M.S. were in the living room. J.E.S. was wearing a nightgown at the time.
Although defendant touched her underneath her nightgown, it was over her
underwear. The rubbing between J.E.S.'s legs lasted a 'couple of minutes.'
Defendant also went over to J.S. and rubbed his hands over her chest underneath her
nightgown. Defendant also rubbed her bare buttocks and fondled her vaginal area by
putting his hand inside her underwear. This went on for about five minutes.
The second major incident with defendant appears to have occurred during a barbeque
at Uncle [C.]'s house on Labor Day 1990, which all of the girls attended. Uncle [C.] lived
on a lake and owned a couple of boats. G.C. testified that, while she was at the
barbeque, defendant 'would just like start playing rough with us, throwing us around,
and then he would start touching us.' In the living room, he touched G.C. on her chest
and between her legs[.] When defendant touched G.C., it was done under her clothes in
an attempt to move his finger from the outside to the inside of her vagina. When the
girls swam in the lake, defendant allegedly touched their chests underneath their
bathing suits.
On another occasion, on February 2, 1991, there was a sleepover at the residence of one
of the victims. At one point, defendant started chasing the girls around the house, and
he 'wouldn't leave [them] alone.' Defendant would not let the girls go into the
bedroom, as he did not want them to go to sleep. L.L. sat on the stairs and watched the
movie that a grown-up was watching in the living room. Defendant sat down a few
stairs above her and put his arms around her, fondled her breasts and played with her
hair. He also took her up to the landing on the stairs, made her lie on her stomach, and
put a blanket over her. Defendant pushed up her nightgown, rubbed her back, and
kissed her on the buttocks.
[State v. Lynch, No. A-6463-98 (App. Div. Dec. 13, 2001) (slip op. at 3-5).]
After the first incident, the girls told their mothers, D. and E.L., that "[defendant] had been touching them." D. tried
to talk to her daughters about the incident, but they refused to talk about it. After another incident, defendant told
the girls that he knew what he was doing was wrong and that if they "told on him he was going to hurt one of
[them]."
Upon learning of the February 2, 1991 incident, D. went to D.L. and E.L.'s home to confront defendant, who said, "I
don't know why I did it." D.L. and E.L. subsequently contacted the police.
On February 7, 1991, D.L. brought defendant to the West Milford police department to give a statement to the
police. After being advised of his rights by Investigator Dolores Most of the Passaic County Prosecutor's Office,
defendant confessed to molesting the girls. He admitted to fondling the girls, "touching their bodies," and
"purposely massag[ing] their bodies to see how he could get them aroused." At no point during the two-hour
interview did defendant indicate that he did not understand what was being discussed; nor did he request an
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attorney. Defendant told Most he was not attracted to children, but they were attracted to him. Although
defendant refused to sign a typed statement, Most prepared defendant's confession, and defendant made
handwritten corrections to it.
II
Against this factual background, we address defendant's ineffective assistance of counsel claims. A successful claim
of ineffective assistance of counsel must meet the two-part test delineated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and adopted in State v. Fritz, 105 N.J. 42, 52 (1987). The
Strickland test requires: (1) "'that counsel's performance was deficient,'" and (2) "'the deficient performance
prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80
L. Ed. 2d at 693)).
To make a prima facie showing that counsel's performance was deficient, a defendant must show that
"counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Whether performance is
deficient is determined by the reasonableness of counsel's performance based on professional standards. Id. at 688-
89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Counsel's performance is to be given "extreme deference" with a
presumption of reasonable assistance. Fritz, supra, 105 N.J. at 52. "[T]he defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial strategy." State v. Arthur, 184
N.J. 307, 319 (2005). Once the defendant has shown that counsel's performance was deficient, "[t]he defendant
must show that a reasonable probability exists that but for counsel's unprofessional errors, the results of the
proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant first contends that trial counsel's failure to present evidence of diminished capacity as a defense
at trial deprived him of effective assistance of counsel. He claims that the pre-trial testimony of Dr. Francis Howland
and Dr. Crain during his competency hearings established that he suffered from multiple personality disorder. In
addressing this argument, Harold Ruvoldt, one of defendant's trial attorneys, testified at the PCR hearing that
although defendant had initially been found incompetent to stand trial, there was "no psychiatric support for
incompetence at the time of the act" to support a diminished capacity defense. Ruvoldt also noted that "the use of a
psychiatric defense without the benefit of any expert testimony was not something that we thought was viable."
Ruvoldt believed that "what [Dr. Howland] would have testified to would have been more harmful than helpful."
Not every mental disease or defect supports a diminished capacity defense and "many mentally disturbed
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persons are [quite] capable of acting purposefully or knowingly." State v. Reyes, 140 N.J. 344, 360 (1995) (internal
quotations omitted). Ruvoldt's testimony shows that the decision not to present a diminished capacity defense was
a strategic decision presumed to be valid under the Strickland test. Defendant has failed to offer any facts to
overcome the presumption of validity and to show that, under the circumstances, that decision was unreasonable.
Defendant next argues that defense counsel was ineffective by convincing him not to testify. Criminal
defendants have a constitutional right to testify on their own behalf. State v. Bey, 161 N.J. 233, 269 (1999). A
defendant's decision whether to testify in a criminal case is an important strategic or tactical decision to be made by
a defendant with the advice of counsel. State v. Coon, 314 N.J. Super. 426, 435, certif. denied, 157 N.J. 543 (1998).
[I]t is the responsibility of a defendant's counsel . . . to advise defendant on whether to
testify and to explain the tactical advantages or disadvantages of doing so or not doing
so. Counsel's responsibility includes advising a defendant of the benefits inherent in
exercising that right and the consequences inherent in waiving it. . .                                                     . [C]ounsel's failure
to do so will give rise to a claim of ineffectiveness of counsel.
[Bey, supra, 161 N.J. at 270 (quoting State v. Savage, 120 N.J. 594, 630-31 (1990)).]
Claims involving the denial of a defendant's right to testify are evaluated under the Strickland test. Id. at 271.
Here, Ruvoldt testified that after discussions with defendant regarding whether or not he would testify,
Ruvoldt concluded that defendant should not testify "based on things that [defendant] had said to me about the
underlying facts," and based on defendant's confession. Ruvoldt also questioned whether defendant would be able
to testify "in a truthful fashion in front of the jury." Prior to defendant's decision not to testify, Cathy Fleming and
defendant had many discussions over the course of several days. Fleming believed defendant should not testify
because of his confession, particularly in light of the handwritten corrections he made to the typed statement
drafted by Most detailing the abuse. Fleming also believed that, based on what defendant had told her during the
course of her representation, she would be very limited in questioning him because of her ethical obligation not to
"help or suborn perjury." Finally, she believed that at the close of the prosecution's case, defendant had "as good a
record as he was going to have for an appeal," and that his testimony could weaken his appeal. Fleming advised
defendant accordingly, and defendant ultimately made the decision not to testify.
During the PCR hearing, the court questioned defendant extensively about his decision not to testify. He
advised the court that he had the opportunity to "fully discuss" the issue with his attorney; that his attorney
answered all his questions about the effect of testifying; and that he did not wish to discuss the matter further with
his attorney. Defendant told the court that he made the decision not to testify after consulting with his attorney.
Defendant testified that "[he] was very adamant [he] wanted to testify," but he agreed not to testify upon counsels'
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advice that "it would undermine their appeals issues and [] would weaken the appellate case." Thus, by defendant's
own admission, defense counsel fully advised him of the advantages and disadvantages of testifying, and he
voluntarily and knowingly waived his right to testify.
Defendant claims that his girlfriend, Rozmary Rotondo, overheard the assistant prosecutor "coaching State witness
S.C. to fabricate highly prejudicial sexual assault stories against defendant involving activity on a boat." Thus, he
contends that defense counsel provided ineffective assistance by failing to investigate the alleged witness
tampering and failing to call Rotondo as a witness.
The record does not support defendant's contention of witness tampering. Ruvoldt testified that he did not call
Rotondo as a witness because she did not have any information regarding the incidents of abuse, or any other
relevant testimony. The record supports his conclusion.
The conversation in which defendant alleges the prosecutor "coached" S.C. appears to have been a
conversation the prosecutor had with S.C. outside the courtroom prior to her testimony. During the conversation,
the prosecutor questioned S.C. regarding a drawing S.C. had made depicting some of the incidents between her
and defendant. For the first time, S.C. told the prosecutor that defendant had taken her in the shower. The
prosecutor immediately advised the court of the new information. The court offered defense counsel an
opportunity to explore whether the prosecution had prior knowledge of the incident; accordingly, S.C. testified in a
hearing outside the presence of the jury that she had never told anyone about the shower incident prior to that day
in court. Thus, there is no evidence to support defendant's witness tampering claim.
The PCR court also found defense counsel's decision not to call defendant's brothers as witnesses to be sound trial
strategy. Fleming testified that each of the potential defense witnesses from defendant's family could reveal "real
negative" information if permitted to testify at trial. Instead of presenting their testimony, defense counsel's
strategy was to use information learned through pre-trial interviews to affect the credibility of the victims'
testimony on cross-examination.
Even if counsel's failure to call defendant's brothers as witnesses was not reasonable assistance of counsel, it was
not capable of altering the outcome of the trial. Both brothers testified at the PCR hearing. They simply stated that
on the day of the barbeque, based on the layout of the house and the boat, and the two areas where the girls
alleged defendant abused them, "the allegations [against defendant] . . . were virtually impossible" because "there
were people everywhere at all times." They both admitted, however, that they were not with defendant the entire
day or on any of the other occasions when he was accused of abusing the girls. Therefore, calling defendant's
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brothers as witnesses would not have made it reasonably probable that the result of the trial would have been
different.
Defendant claims that defense counsel failed to investigate the validity of the victims' stories and failed to
investigate or call as a witness the therapist who provided counseling to some of the victims, and who defendant
alleges wrote essays for them describing their abuse. The victims, however, testified that the essays and drawings
that were admitted in evidence at trial, which they had drafted during therapy sessions, were their own words and
depictions of the incidents of abuse.
The record further reflects defense counsel's extensive cross-examination of the victims, attempting to elicit
inconsistencies in their stories, their inability to remember the incidents of abuse, and their failure to tell anyone
details of the abuse. Defense counsel also vigorously cross-examined Most regarding the investigative techniques
she used during the victims' interviews, which Most admitted violated interview standards. Thus, defense counsel
zealously advocated her client's defense, and did not provide ineffective assistance of counsel.
Defendant claims he received ineffective assistance of counsel because the only reason defense counsel did
not call any witnesses or otherwise present a defense "came down to a cold financial calculation," based on the fact
that defendant had no more money to spend on his defense. There is no basis in the record to support that
assertion. Defendant testified at the evidentiary hearing that he did not want Fleming representing him because he
could not afford to switch attorneys; however, he admits that Ruvoldt told him not to "worry about the money."
Defendant also claims that Ruvoldt "was removed from the case" to handle a more lucrative murder trial, and
Fleming, at defendant's objection, acted as trial counsel. Ruvoldt testified that making Fleming lead trial counsel
was a strategic decision because "[a]ll the victims were women," and the lead investigator was a woman. Fleming
testified that the defense's overall strategy was to present its case through cross-examination of the State's
witnesses and to "poke as many holes in [the State's case] as we could to try to establish reasonable doubt to [the]
jury."
Defense counsel's strategy is presumed valid, and in light of defendant's confession and the testimony of the
victims, there is no basis to conclude that counsel acted unreasonably and deprived defendant of effective
assistance of counsel. There is no evidence that the decision to have Fleming try the case was based on defense
counsels' financial interests.
Defendant nevertheless claims he was denied effective assistance because "Fleming's advocacy . . . was
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compromised due to her discovery violations . . . which left her open to ethical attack . . . that she had coached the
witnesses." Although the court admonished Fleming for her repeated failure to provide the prosecution with
memoranda summarizing new information the defense obtained during witness interviews taken during trial, these
discovery violations did not prejudice defendant. There is no basis to conclude that but for Fleming's discovery
violations, the result of the trial would have been different.
Further, any newly obtained information Fleming attempted to elicit during the witnesses' testimony could
only benefit defendant. For example, Fleming learned during a lunch break that one of the victims was considering
filing a civil suit against defendant. Fleming, having not revealed the information to the court or the prosecution,
attempted to question the victim regarding the alleged civil suit to show a motive or bias against defendant;
however, the court ordered the question to be stricken from the record. Fleming's conduct, although inappropriate,
reflected her attempt to advocate her client's defense.
Defendant also argues that Fleming's discovery violations caused the prosecution to "attack[]" Fleming in
order to undermine exculpatory testimony of C.L., whose testimony at trial negated the State's case. Defendant
claims that Fleming's violations would allow the prosecution to accuse her of coaching witnesses. Again, there is no
basis to conclude that the prosecution's remarks regarding Fleming's discovery violations prejudiced defendant.
Any discussions regarding the discovery violations were held outside the presence of the jury.
Defendant argues that prejudicial hearsay testimony by the father of two of the victims was elicited during
trial. The father testified, "My daughters were molested by Jeffrey Lynch," and "He just better not come up on the
mountain anymore." Defendant claims that "[t]his hearsay, brought on by counsel's unprofessional errors, was the
most prejudicial moment of the trial."
We reject defendant's claim. Although the testimony was hearsay, the court ordered that the witness's
statement be stricken from the record. This isolated statement, which the court cured with an immediate
instruction, does not require a new trial.
Defendant contends that he was denied effective assistance of counsel by defense counsel's failure to call E.L., the
mother of one of the victims, as a witness at trial. Defendant claims that her testimony would have "call[ed] into
question the credibility of the statements and fresh complaint evidence by the girls and Mrs. [S.]," the other girls'
mother, because E.L. testified during pre-trial hearings that the girls were "laughing," and "giggling" on the night of
the sleepover when her daughter told her that defendant had been "touching some of the girls." E.L. also testified in
pre-trial hearings that she did not think C.L.'s accusations were serious because C.L. "tends to exaggerate." When
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she asked if the girls were "all right," they "just [] ignored [her]." E.L. did not investigate her daughter's allegation any
further that night.
Defense counsel's decision not to call E.L. as a witness constituted "trial strategy" and is presumed valid. See
Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.2d 694 (internal quotation omitted). Fleming testified
that E.L. was not called to testify because "there was real negative as well as positive information that could come
out." Ruvoldt testified that E.L.'s role as the "fresh complaint witness" and her subsequent involvement with the
investigation were "minor," and that the better strategy was to focus on discrediting Most's testimony regarding the
statements given to her by the victims and witnesses.
Further, E.L.'s testimony regarding the victims' demeanor the night of the sleepover and C.L.'s tendency to
"exaggerate," had all been presented to the jury through other testimony. D.G., the mother of three of the victims,
testified that the girls "may have been laughing" when telling their mothers about defendant's actions. C.L. herself
testified that the girls' stories were exaggerated, and may have even contained lies. Thus, defendant has not shown
how he was prejudiced by counsel's failure to call E.L. as a witness.
Defendant claims that Fleming ineffectively cross-examined Most, allowing her to provide perjured testimony.
Defendant does not explain, however, what part of Most's testimony was perjury. Moreover, the record reflects
Fleming's extensive cross-examination of Most, and her attempts to discredit the witness, including Most's
admission that she did not include in her notes or in the typed statement of defendant's confession, defendant's
alleged statement that "I did it, I knew the danger of it, but I enjoyed it as well as the girls enjoyed it." The trial court
commented on the thoroughness of defense counsel's cross-examination of all witnesses and noted that "every
issue was [] thoroughly probed" by defense counsel. Defendant has failed to provide sufficient evidence to
overcome the presumption that defense counsel's cross-examination of Most was reasonable, nor has defendant
established that it unduly prejudiced him.
Defendant next claims that had defense counsel obtained and reviewed the pre-trial transcripts, they could have
impeached Most's perjured testimony. Again, defendant does not explain what part of Most's testimony constituted
perjury, or how the transcripts could have been used to "throw[] out the Investigator's testimony entirely." Nor is
there any proof in the record that Fleming did not have access to or use of the pre-trial transcripts in order to
prepare for trial. The record does reflect, however, Fleming's reasonable attempt to undermine Most's testimony.
Defendant claims defense counsel was ineffective by failing to call the caseworker from the Division of Youth and
Family Services (DYFS) to testify at trial, who he alleges could have impeached Most's testimony. The caseworker
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testified during the pre-trial Miranda hearing that, when she first interviewed defendant, he immediately "admitted
that he did everything" and "that he knew that what he did was wrong." Fleming testified during the PCR hearing
that part of the defense's strategy was to "keep[] that confession away from the jury" because it was a "terrible piece
of evidence." Accordingly, defense counsel's decision not to call the DYFS caseworker to testify, in light of her pre-
trial testimony, was reasonable.
III
Defendant raises several issues that we addressed in his direct appeal, based on arguments made in his
counsel's brief or in his pro se supplemental brief. He claims that he did not voluntarily waive his Miranda rights; he
contends that improper comments by the prosecutor during summation allowed the jury to hear inadmissible
hearsay testimony; he claims that the court abused its discretion by giving the jury unlimited access to the
videotapes of the DYFS workers' interviews with the victims; and he asserts that two hung juries denied him his
constitutional rights. On direct appeal, we rejected these claims either directly, or summarily pursuant to Rule 2:11-
3(e)(2). Consequently, these claims are now barred. See R. 3:22-5 (PCR petitioner cannot assert as a basis for relief a
claim previously adjudicated on the merits); State v. Trantino, 60 N.J. 176, 180 (1972) (once decided, an issue, even
of constitutional dimensions, may not be relitigated); Pressler, Current N.J. Court Rules, comment on R. 3:22-5 (2009)
(prior adjudication of an issue, particularly on direct appeal, will ordinarily bar post-conviction relief).
IV
The remaining arguments defendant raises in his brief are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm, subject to defendant's right to file a new PCR application based upon the
documents included in his motion to supplement the record.
0x01 graphic
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
Following the court's issuance of the order denying defendant's PCR petition, defendant obtained an affidavit from
Peter M. Crain, M.D., a forensic psychiatrist. On January 30, 2009, defendant filed a motion to supplement the record
with Dr. Crain's affidavit. Because the PCR judge did not have an opportunity to review Dr. Crain's affidavit, we deny
defendant's motion without prejudice to defendant to timely file a new PCR petition based on the affidavit and the
other documents included in defendant's motion to this court to supplement the record. We do not retain
jurisdiction.
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Although Ruvoldt represented defendant pretrial, Cathy Fleming, Esquire, tried the case before the jury.
Our decision on this issue is without prejudice to defendant's new PCR motion. See, supra, at p. 9, n.2.
(continued)
(continued)
27
A-1891-06T4
RECORD IMPOUNDED
June 18, 2009
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