On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 98-10-0052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Axelrad.
Defendant Bienvenido Casilla appeals from an order of January 3, 2006, denying his application for post-conviction relief (PCR) alleging ineffective assistance of trial and appellate counsel. Defendant claims trial counsel failed to:
(1) file a motion challenging the legality of his warrantless arrest; (2) file a motion to suppress his confession; (3) ensure during jury selection that some of the jurors spoke or understood Spanish; (4) object to the jury instruction on accomplice liability as to count four (murder); (5) challenge the validity of the indictment; and (6) object to hearsay evidence. He also claims appellate counsel was deficient in failing to argue on direct appeal that his confession should have been suppressed as the fruits of an illegal arrest. We affirm substantially for the reasons articulated by Judge DeVesa following oral argument on December 15, 2005.
Defendant, his stepson Juan Machado, and another co-defendant were involved in drug-related activities, including collecting debts owed to other drug dealers. They kidnapped Eddie Acevedo, a suspected police informant, held him for ransom, and then shot him and set his car on fire. Machado pled guilty to kidnapping and testified for the State. Defendant was convicted by a jury of a variety of charges, including murder and kidnapping. Defendant appealed and we affirmed his convictions and sentences for murder and hindering apprehension; vacated his conviction for first-degree kidnapping and remanded for re-sentencing as a second-degree offense; and reversed his convictions for racketeering and theft by extortion because of deficient jury instructions. State v. Casilla, No. A-1274-00T4 (App. Div. August 18, 2003). On November 17, 2003, the Supreme Court denied certification. State v. Casilla, 178 N.J. 251 (2003). On January 23, 2004, defendant was re-sentenced on the second-degree kidnapping conviction. Thereafter, defendant filed this PCR petition.
As noted by Judge DeVesa, defendant's allegations of trial error are either unsupported by the record, were addressed on appeal, or do not meet either prong of the Strickland test to establish a claim for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 2064-69, 80 L.Ed. 2d 674, 693-98 (1984) (in order to establish a claim for ineffective assistance of counsel, a defendant must meet the two-prong test of showing that his counsel's performance was seriously deficient in that it fell below an objective standard of reasonableness measured by prevailing professional norms and that the defect in performance prejudiced his right to a fair trial and affected the outcome of the case).
Contrary to defendant's assertions, trial counsel did argue the legality of defendant's arrest in New York City, contending the police lacked probable cause. The trial court rejected the argument, finding the evidence available to the police at that time "overwhelmingly suggest[ed] that [defendant] was somehow involved in the kidnapping and the murder of Eddie Acevedo." Defendant's second assertion, that his trial counsel failed to file a motion to suppress his confession, is also belied by the record. A lengthy Miranda hearing was conducted, during which uncontroverted testimony was presented that defendant was read warnings twice in Spanish, defendant's primary language, by a Spanish-speaking detective. The trial judge found defendant was apprised of his Miranda warnings, his subsequent statements were voluntary, and under the totality of the circumstances the confession was admissible. Defendant's assertion that his trial counsel failed to object to the sufficiency of the indictment is also not factually supported. To the contrary, defense counsel filed a motion to dismiss various counts of the indictment on August 30, 1999, which was denied.
The instructions on accomplice liability were sustained on defendant's direct appeal and thus cannot be reconsidered in a subsequent PCR application. R. 3:22-5. Moreover, although defendant's claims of trial counsel's deficiency in failing to make hearsay objections should have been raised on direct appeal, nonetheless, Judge DeVesa reviewed each of the instances asserted in defendant's PCR petition and determined that the majority of them met an exception to the hearsay rule. As to the others, the court was satisfied that counsel was entitled to deference in terms of strategy by not repeatedly objecting to all possible types of hearsay.
It is well within the discretion of appellate counsel to limit the number of arguments raised on appeal to put forth his or her client's best points. Indeed, the partial success achieved by defense counsel on appeal suggests that appellate counsel advanced strong arguments on his client's behalf. Appellate counsel cannot be faulted for making a tactical decision not to raise losing arguments on appeal, such as the legality of defendant's arrest or the suppression of defendant's statement.
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