State v. Sloan

• Decision Date: 25 July 1988
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William SLOAN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 605

226 N.J.Super. 605

545 A.2d 230

STATE of New Jersey, Plaintiff-Respondent, v. William SLOAN, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued April 27, 1988.

Decided July 25, 1988.

J. Michael Blake, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender; J. Michael Blake, of counsel and on the brief).

Elizabeth Miller-Hall, Asst. Prosecutor, for plaintiff-respondent (Herbert H. Tate, Jr., Essex County Prosecutor; Elizabeth A. Duelly, Asst. Prosecutor, of counsel and on the brief).

Before Judges KING, GAULKIN and D'ANNUNZIO.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

The issue is whether defendant was denied effective assistance of counsel because his trial counsel did not subject defendant to a lie-detector pre-test before defendant submitted, pursuant to a stipulation, to a lie-detector test administered by the Essex County Prosecutor's office.

On March 27, 1980 a jury convicted defendant of rape ( N.J.S.A. 2A:138-1) and of rape while armed ( N.J.S.A. 2A:151-5). Defendant was sentenced to five to seven years imprisonment on the rape charge and to a consecutive term of one to three years on the rape while armed charge. Defendant appealed and we affirmed his conviction in an unreported opinion on July 8, 1981 (Dkt. A-4111-79-T4). Defendant's petition for certification to the Supreme Court was denied. State v. Sloan, 88 N.J. 484, 443 A.2d 701 (1981).

On May 16, 1986, defendant filed a petition for post-conviction relief, alleging that he had been denied the effective assistance of counsel. After a hearing, the petition was denied. Defendant now appeals.

Based on the evidence, the jury could have found that on December 26, 1978, S.T. and defendant were in the Kings and Queens Bar on Halsey Street in Newark. Defendant approached S.T. and the two began to talk. After several drinks, S.T. left with defendant who had offered to drive her to a bus stop. As they were leaving the Kings and Queens Bar, defendant suggested that they get something to eat. They stopped briefly at another tavern which did not serve food, and S.T. asked defendant to take her to a bus stop. Defendant then stated that he knew of another bar down the street which served food. While running across the sidewalk to the bar, S.T. heard what she described as a "clunk". Turning around, she observed a gun on the pavement. She asked defendant what the object was and he responded "That's my gun."

At the third bar, defendant made romantic overtures toward S.T. which were rebuffed. Following this rejection, defendant stated that he would take her home. S.T. left with defendant, believing that he was taking her to a bus stop. Instead, he took her to the Sussex Mall Shopping Plaza.

At the mall, defendant drew a gun on S.T. and indicated that he intended to have intercourse with her. Frightened, S.T. attempted to stall defendant by suggesting that they go to a motel. Defendant continued to brandish the weapon and threatened to kill S.T. if she did not get undressed. Shortly thereafter, he forced S.T. to have sexual intercourse.

Thereafter, defendant drove S.T. to a bar called Umojo's where he gave her five dollars to get a taxi. He also informed her that she could notify the police or anyone else if she wanted. Upon entering the tavern, S.T. approached a bartender, informed him of the rape and requested assistance. The bartender arranged for transportation to her home.

Initially S.T. did not tell her family about the incident. However, the following evening, she told her sister-in-law about the attack and, shortly thereafter, reported the incident to the Newark Police Department.

At trial, defendant testified that upon meeting S.T., it was his intention to have intercourse with her and that he had lied to her in his attempt to persuade her to submit to his advances. Defendant also testified that S.T. did not resist his advances and that she seemed to be falling in love with him. But later in the evening defendant offered S.T. fifty dollars to have intercourse with him. Defendant further testified that prior to leaving the bar, S.T. asked him whether he was carrying a gun under his jacket. On direct, the defendant claimed that he merely laughed at her query and did not respond. However, during cross-examination, he sought to explain his reaction by stating that what S.T. felt was his electronic beeper.

According to defendant, S.T. agreed to have intercourse with him for fifty dollars. He testified that after taking her to the Sussex Mall and engaging in sexual intercourse there, he began to drive her home. Defendant became annoyed when S.T. asked for the fifty dollars, a sum he had no intention of paying. Defendant claimed that he stopped his car and ordered her to get out. Before he drove away, defendant gave S.T. some money to get home.

Prior to trial, defendant's counsel, Norman Fishbein, arranged for defendant to submit to a polygraph examination to be administered by the prosecutor's office. Pursuant to this arrangement, defendant and the State entered into a signed stipulation. According to the defendant's testimony at the post-conviction relief hearing, Fishbein ¹ had not arranged for defendant to undergo a privately administered polygraph test prior to entering into the stipulation with the State nor had Fishbein discussed the possibility of a pre-test with defendant.

The polygraph was administered to the defendant on January 29, 1980 by investigator Theodore P. Cielecki. Defendant had come to the prosecutor's office on January 4, 1980 to undergo the test but was advised by Cielecki not to undergo the test on that date due to the fact that defendant's wife was hospitalized. On both occasions defendant signed a stipulation pursuant to which the results of the polygraph would be admissible at trial. Defendant testified at the trial and at the post-conviction hearing that he did not read the stipulation before he signed it.

Pursuant to the stipulation, Investigator Cielecki testified at defendant's trial and was permitted to express his opinion that defendant had given deceptive answers to three questions asked during the polygraph examination. The three questions and answers were as follows:

Q: Do you know for sure if anyone forced [S.T.] to have sex on December 26, 1978?

A: No

Q: On December 26, 1978, did you force [S.T.] to have sex with you?

A: No

Q: Have you told me the complete truth of your actions as to what happened with [S.T.]?

A: Yes

Fishbein objected to the admission of Cielecki's testimony regarding the polygraph test. Fishbein asserted that the prosecutor's office had suggested the polygraph test. Fishbein further testified at trial ² that it was his and defendant's understanding that the purpose of the polygraph was limited to the question of whether defendant had a gun in his possession on the night in question. Fishbein stated that although defendant was initially reluctant to submit to the test, defendant agreed to submit to the test after Fishbein told him that the gun would be the crux of the case and that if it could be shown that he did not threaten and rape S.T., the prosecutor would no longer be interested in prosecuting.

The trial judge did not find bad faith on the part of the prosecutor, although he concluded that there had been a misunderstanding. Nevertheless, the trial judge refused to void the stipulation, finding that Fishbein and defendant signed the stipulation with full knowledge of the implications of its provisions. The trial court then held that defendant was bound by the stipulation agreement because it believed that Fishbein's decision was "knowingly based on [his] years of experience."

At the post-conviction relief hearing, defendant claimed that prior to undergoing the polygraph examination Fishbein told him that the prosecutor's office was only concerned with whether he possessed a gun on the night in question. Defendant testified that it was his belief that if the polygraph did not reveal that he had a gun in his possession, he would be cleared of all charges. ³ Defendant also testified that he did not read the stipulation prior to signing it because it was lengthy ⁴ and he preferred to rely on Fishbein and Assistant Prosecutor Rosenfeld's explanation of the form. Defendant admitted that he had discussed the possibility of a polygraph with Fishbein on numerous occasions prior to signing the stipulation form.

Dale Jones, Director of Capital Litigation in the Office of the Public Defender, testified at the post-conviction relief hearing as an expert in criminal litigation. Jones testified that it would be ineffective assistance of counsel for an attorney to place a client accused of rape on a stipulated polygraph without first subjecting the client to a pre-test. Jones indicated that a failure to pre-test would not meet prevailing professional norms in the State of New Jersey.

Defendant contended that he was denied effective assistance of counsel because: (1) Fishbein misunderstood the scope of the stipulation and, therefore, did not adequately advise defendant with regard to it; (2) Fishbein failed to subject defendant to a polygraph pre-test.

Judge Degnan ⁵ denied the petition on the grounds that defendant's first contention had been raised on direct appeal and had been rejected, R. 3:22-5, that the second contention was closely related to the argument advanced on direct appeal, and, in any event, could have been raised on direct appeal. R. 3:22-3; R. 3:22-4. Judge Degnan also ruled that the five-year limitation in R. 3:22-12 did not bar the petition because the delay in filing the petition was due to excusable neglect. ⁶

We agree with Judge Degnan that defendant's contention that Fishbein had not adequately understood or explained to him the meaning of the polygraph stipulation is barred under R. 3:22-4 and 5. On his direct appeal defendant contended that admitting the polygraph test...