STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEPHEN F. SCHARF, Defendant-Appellant.
DOCKET NO. A-2486-18T1
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Submitted March 12, 2020 – Decided August 31, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-08-1485. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Mark Musella, Bergen County Prosecutor, attorney for respondent (Ian C. Kennedy, Assistant Prosecutor, of counsel; Catherine A. Foddai, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited.
R. 1:36-3 .
PER CURIAM
I.
The following facts are derived from the record. Because we write only for the parties, we provide an abbreviated rendition of the facts relevant to defendant‘s PCR claims.
On September 20, 1992, a man entered a police station to report that someone, later identified as defendant, had flagged him down at a highway rest stop seeking help because his wife had fallen off a cliff. The police did not record the man‘s name or contact information.
Officers who responded to the scene met with defendant who said he and his wife, Jody Ann Scharf, stopped at the park on their way to a date and were sitting on a ledge at the top of a cliff. Defendant told the officers that when he got up to get a blanket and wine from his car, his wife stood up, asked him not to go, and fell off the cliff.
Rescue personnel rappelled down the cliff to look for Jody.1 The officers found her purse and some of its contents scattered on an outcropping about eight
The officers located Jody‘s body face-down between a tree and a rock approximately 119 feet vertically and fifty-two and half feet horizontally from the ledge. Jody showed no signs of life and had substantial physical injuries, including severe trauma to her skull and chest. The officers identified an apparent impact point on an overhanging tree, which was сovered in blood and tissue, eight feet above the body.
The officers did not photograph Jody‘s body or otherwise document its location. Nor did they collect blood or tissue samples from the apparent point of contact in the tree. The officers moved the rock next to the body without first photographing the rock or documenting its location. The officers gave conflicting accounts of whether there had been blood on the rock. Photographs of thе tree taken later do not show the rock. The officers put the body in a basket and lowered it to a road at the cliff base. The clothing on Jody‘s body was destroyed after being turned over to a funeral home director.
On the night of the incident, defendant consented to a search of his car, which revealed, along with a number of other items, a claw hammer. In an interview at the police station, defendant said the hammer was in the car because he had been using it to fix a drawer in the kitchen of the couple‘s home, placed it in a bag intending to drop it off in the garage as he left for the park with Jody, but forgot to do so. Police did not record defendant‘s interview.
When police later searched defendant‘s home, they did not photograph or seize the kitchen drawer. An officer testified that during the search of defendant‘s home, defendant spontaneously turned to the officer and asked: “[Y]ou don‘t believe this was an accident[?]” or “[Y]ou don‘t believe me[?]” The officer said he believed an accident had occurred, to which defendant “said, [‘]no,[‘] and put his head down” and, shortly after, asked to speak with a priest. The officer recounted the conversation with a detective, but did not write a report detailing the exchange. Another officer recalled writing a report about
In 2004, the prosecutor‘s office began a “comprehensive review” of the matter. In 2006, the medical examiner visited the location at which Jody‘s body was found. Having viеwed the scene, and with greater experience examining fall victims, she determined Jody‘s injuries were inconsistent with a passive fall down the cliff face and were indicative of her having been propelled off the cliff. In 2007, she amended the death certificate to state homicide as the manner of death. She did not take measurements at the scene or samples of tree bark to compare to Jody‘s injuries.
The investigation also revealed the couple‘s marriage was unhappy, with both defendant and his wife openly having affairs. Defendant told inconsistent stories to the women he was dating. He told one woman that his wife had died in an automobile accident in 1979, and his son was from a different relationship. To another woman, defendant said he and Jody were in the process of divorcing. Shortly before Jody‘s death, he told a woman he was dating that he was fighting with his son‘s mother over custody but that most of the stress he was under would be gone in September.
Investigators documented numerous statements by Jody to her friends and therapist expressing fear of defendant. She told one friend she was concerned defendant would harm her if she served him with a divorce complaint and to suspect defendant if she died under unusual circumstances. Jody told her defendant “really . . . wants me gone . . . .” She told her therapist that she suffered mental and physical abuse from defendant, who she described as very punitive. The therapist reported that about a month before her death Jody recounted that defendant said that he had been to a park on the Palisades with a beautiful view and that he wanted to take Jody there. Jody told defendant he “was crazy” and would not go to a cliff.
Two weeks before Jody died, her attorney served defendant with a divorce comрlaint, alleging he was unfaithful and abusive. Jody told a friend defendant was unhappy she was seeking a divorce, that she was afraid of him, and wanted him out of the house. The day before her death, Jody told a friend that defendant “threatened her life” and would rather “see her dead before . . . he would sign”
The couple‘s son told investigators Jody had expressed fear of defendant and refused to be alone with him. He also stated Jody was extremely fearful of heights and doubted she would sit on a ledge on a cliff. In addition, he told police Jody had told him defendant was “hitting her, abusing her and seeing other people . . . [a]nd she could[ not] take it anymore,” which was the reason she filed for divorce.
On August 13, 2009, defendant was indicted by a grand jury for the knowing and purposeful murder of Jody,
A jury found defendant guilty of murder, contrary to
While the remand was pending, defendant filed a petition for PCR. The trial court dismissed the petition without prejudice to be refiled within ninety days of the outcome of the remand proceedings.
On January 27, 2017, we rejected defendant‘s jury instruction argument and affirmed his conviction. State v. Scharf, No. A-1580-11 (App. Div. Jan. 27, 2017). The Supreme Court denied certification. State v. Scharf, No. 078952 (Mar. 21, 2017).
On May 26, 2017, defendant refiled his petition for PCR. He alleged he was deprived the opportunity to raise an effective defense and to cross-examine witnesses because the State failed to collect and preserve evidence. He also alleged ineffective assistance of trial counsel because his attorney: (1) did not call him as a witness at a hearing on his motion to suppress his statements to police; (2) advised him not tо testify at trial to prevent cross-examination about
On December 5, 2018, Judge James X. Sattely issued a comprehensive and well-reasoned written opinion denying defendant‘s PCR petition without an evidentiary hearing. The judge found defendant‘s allegations regarding the spoliation of evidence and the absence of an adverse inference jury instruction to be barred by
[t]rial counsel stated on the record that counsel and the defendant spoke extensively about the defendant‘s right to testify. [The trial court] then followed up with the defendant to ensure the defendant understood it was his decision as to whether or not thе defendant wanted to testify. The defendant affirmed he had decided not to testify and that the defendant wanted [the court] to read the [e]lection [n]ot [t]o [t]estify charge to the jury. The defendant was presented with two opportunities on the record to testify on his own behalf and both times chose not to. The defendant did not object or oppose . . the statements made by his counsel stating they had discussed the option of testifying.
. . . .
Even if this was a strategic decision by counsel and not thе defendant‘s personal choice, the defendant‘s argument does not reach a level in which trial counsel was acting below a standard of an objective reasonable representation. Defendant has not shown that trial counsel‘s performance was defective. Therefore, the defendant fails to prove the first prong of [his ineffective assistance of counsel claim.]
Addressing defendant‘s argument with respect to not testifying at the suppression hearing, Judge Sattely held that trial counsel raised numerous points at the suppression hearing with respect to the voluntariness of defendant‘s statements to police that defendant argues would have been addressed in his
The trial court also concluded defendant did not establish a prima facie claim of ineffective assistance of apрellate counsel. Judge Sattely explained:
Appellate counsel is not required to raise every possible claim. The defendant‘s appellate counsel was initially very successful on direct appeal, leading to defendant‘s conviction being reversed until reaching the New Jersey Supreme Court. . . . Notwithstanding the procedural bars, the arguments fail . . . . Counsel‘s choice not to pursue those issues do not rise to defective representation, but a choice in their litigation strategy. The defendant was not prejudiced by counsel choosing not to raise those issues. Further, appellate counsel was not ineffective in the defendant‘s representation on direct appeal.
In light of its conclusion that defendant did not make a prima facie case of ineffective assistance of counsel, the trial court determined an evidentiary hearing was not required.
This appeal followed. Defendant raises the following argumеnts.
POINT I
THE PCR COURT ERRED BY PROCEDURALLY BARRING DEFENDANT‘S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS REGARDING THE STATE‘S SPOLIATION OF EVIDENCE; THEREFORE, THIS MATTER MUST BE REMANDED FOR THE COURT TO ADDRESS THESE CLAIMS SUBSTANTIVELY.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL[‘S] INEFFECTIVENESS FOR ABRIDGING HIS CONSTITUTIONAL RIGHT TO TESTIFY.
II.
The trial court relied on
(a) First Petition for Post-Conviction Relief. Any ground for relief not raised in the proceeding resulting in the conviction . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at a hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice . . . .
A ground could not reasonably have been raised in a prior proceedings only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.
To the extent that defendant raised the spoliation of evidence and lack of an adverse inference instruction as independent substantive claims in his PCR petition, we agree with the trial court that those claims are barred by
To the extent defendant characterizes those claims as ineffective assistance of trial counsel, a different analysis obtains. “Post-conviction relief is New Jersey‘s analogue to the federal writ of habeas corpus.” State v. Preciose, 129 N.J. 451, 459 (1992). Under
The
Under Strickland, a defendant first must show that his or her attorney made errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
A defendant also must show that counsel‘s “deficient performance prejudiced the defense.” Id. at 687. A defеndant must establish 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. “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the trial. Ibid. “[A] court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997). “If it is easier to dispоse of an ineffectiveness claim on the ground
A hearing on a PCR petition is required only when: (1) a defendant establishes a prima facie case in support of PCR; (2) the court determines that there are disputed issues of material fact that cannot be resolved by review of the existing record; and (3) the court determines that an evidentiary hearing is required to resolve the сlaims asserted. State v. Porter, 216 N.J. 343, 354 (2013) (citing
The record supports the trial court‘s conclusion that defendant did not establish a prima facie case of ineffective assistance of trial counsel. Trial counsel raised the issue of spoliation in his opening statement and summation. The jury, therefore, was apprised of defendant‘s claims that the State failed to collect and maintain evidence that may have proven helpful to defendant.
In addition, trial counsel‘s failure to request an adverse inference charge based on spoliation did not harm defendant. When determining whether the spoliation of evidence resulted in denial of a criminal defendant‘s due process
Evidence is material if it possessed an exculpatory value that was apparent before it was destroyed. California v. Trombetta, 467 U.S. 479, 489 (1984). The evidence must be expected to play a significant role in the defense and be of such a nature that the defendant would be unable to obtain comparable evidence by any other reasonably available means. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Trombetta, 467 U.S. at 489; State v. Marshall, 123 N.J. 1, 109 (1991).
The record contains no evidence of bad faith on the part of police or the prosecutor. Nor has defendant demonstrated that the evidence he alleges to have been destroyed would have been exculpatory. There was, therefore, no justification for an adverse inference charge to the jury. See State v. Zenquis, 251 N.J. Super. 358, 370 (App. Div. 1991), aff‘d, 131 N.J. 84 (1993).
We reach the same conclusion with respect defendant‘s claim of ineffective assistance of appellate counsel. Defendant must demonstrate that appellate counsel‘s representation fell below an objective standard of reasonableness and that, but for unprofessional errors, the result on appeal would have been different. State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div. 2007). The court must take into account that matters of appellate strategy lie within the discretion of appellate cоunsel, who is not required to raise every colorable claim on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983); Gaither, 396 N.J. Super. at 515-16. Failing to raise an argument on appeal which would not have been successful cannot constitute ineffective assistance of appellate counsel. State v. Warlock, 117 N.J. 596, 625 (1990).
The record also supports the trial cоurt‘s conclusion that defendant did not make a prima facie showing of ineffective assistance of trial counsel relating to him not testifying at trial or the suppression hearing. The record contains ample evidence establishing that defendant elected not to testify at trial. The trial court engaged in an extensive discussion on the record with defendant and his counsel with respect to defendant‘s election.
In the middle of trial, the court explored with defendant the fact that the decision of whether or not to testify belonged to him. The court urged defendant to discuss the decision with his counsel, who the court characterized as “very competent.” At the close of defendant‘s case, the court again addressed the issue with defendant, who stated unequivocally that he understood that he had an
Finally, we agree with Judge Sattely‘s conclusion that defendant did not make a prima facie showing that his testimony at the suppression hearing would have changed the outcome. Defendant argues that had he been properly advised by counsel he would have testified that he did not feel free to leave when he made statements to police. However, the motion judge made extensive findings with respect to the objective circumstances surrounding defendant‘s voluntary statements. See State v. O‘Neil, 190 N.J. 601, 616 (2007). The motion judge found all of defendant‘s statements were admissible because they were in response to on-scene questioning, voluntarily made while defendant was not in custody, or after defendant voluntarily offered to take a polygraph examination. Testimony regarding defendant‘s subjective belief he was not free to leave would not have changed the outcome of the suppression hearing. See State v. Bey, 161 N.J. 233, 271-72 (1999) (holding that to meet the two-prong Strickland test defendant would have to show that had he testified, the result of the hearing would have been different).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION