July 12, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS ANGEL TORRES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 0369-03-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 13, 2007
Before Judges Wefing and Weissbard.
Defendant, Luis Angel Torres, appeals pro se from the denial of his motion for a new trial on the ground of newly discovered evidence. We affirm.
After a jury trial in June 1993, defendant was convicted of knowing and purposeful murder, felony murder, armed robbery, possession of a handgun for an unlawful purpose and unlawful possession of a handgun. Defendant had been indicted with Luis Gamboa after their cases were waived to adult court.*fn1 The cases were severed and Gamboa testified as a witness for the State.
On August 4, 1993, defendant was sentenced to life imprisonment with thirty years of parole ineligibility for murder. The felony murder was merged and concurrent prison terms were imposed on the other convictions. Following defendant's trial, on December 20, 1993, Gamboa pled guilty to first-degree armed robbery. Pursuant to a plea agreement, the State agreed to recommend a sentence of twenty years with ten years of parole ineligibility, and dismissal of the other charges. He was thereafter sentenced, on January 28, 1994, in accordance with the plea agreement.
While defendant's direct appeal was pending, he moved to expand the appellate record to include transcripts of Gamboa's guilty plea and sentence. We granted that motion. In a published opinion, we affirmed defendant's conviction. State v. Torres, 313 N.J. Super. 129 (App. Div.), certif. denied, 156 N.J. 425 (1998).
In August 1998, defendant filed for post conviction relief. His petition was denied without a hearing. We reversed and ordered an evidentiary hearing on defendant's claim that he had been denied the effective assistance of counsel. After a full hearing, the PCR petition was denied and we affirmed in an unpublished opinion filed on October 31, 2003. A petition for certification was denied on February 10, 2004. On April 19, 2004, defendant filed a second PCR petition, which was denied without a hearing on September 2, 2004. We summarily affirmed that ruling on March 3, 2006.
Finally, in February 2006, defendant filed a motion for a new trial that is the subject of this appeal. The motion was denied on the papers on February 24, 2006, on the basis that it was out of time. On June 21, 2006, defendant's motion for reconsideration was denied on the basis that "there is no newly discovered evidence and [the application] is therefore out of time." On appeal, defendant argues that:
THE COURT BELOW ERRED WHEN IT CONCLUDED THAT THERE WAS NO NEWLY DISCOVERED EVIDENCE, WHEN THE EVIDENCE IN QUESTION COULD NOT HAVE BEEN PRIVY TO APPELLANT DURING THE TRIAL PROCEEDING.
(A) The Trial Court's Denial Of Appellant's Motion For Reconsideration Was Erroneous And His Failure To Provide Any Reason For The Denial Was Likewise Erroneous.
Defendant's argument focuses on Gamboa's direct examination by the Assistant Prosecutor at defendant's trial, in which Gamboa denied that he had been offered or expected to receive any benefit in exchange for his testimony. The critical part of that examination was set out in our published opinion as follows:
Q: Mr. [Gamboa], are you aware of the fact that if you tell us that you knew there was a gun when the robbery was being committed and that someone died, that you're basically admitting to felony murder?
Q: You realize that, do you not?
A: I realize it.
Q: Was it explained to you prior to giving the statement by your attorney and by me --
Q: -- That if you swore an oath, gave this statement, told us that you knew there was a gun, that you were facing the most serious charge?
A: For murder.
Q: Felony murder with as much time, correct?
Q: Even though you never touched the gun, you knew that, did you not?
A: Yes, I did.
Q: I asked you well why do you want to give us a statement, why do you want to give us a statement?
A: Because it was wrong, what happened, somebody die [sic] and I think it's wrong.
Q: Were you offered any type of reduced jail sentence for giving the statement and testifying?
Q: Are you expecting to receive any benefit as a result of this testimony you're giving today?
Q: Mr. Gamboa, you're scheduled for trial next, are you not?
Q: You realize that this seals your fate on a felony murder conviction?
A: Yes, I realize.
Q: Has anybody in any way offered you anything for coming --
Q: Mr. Gamboa, do you expect to receive any type of benefit for your testimony here today?
Q: I talk about when we were in the jury room that time I told you no promises or no jail sentence reductions are in line for you, isn't that true?
A: That's true.
Q: In fact you contacted Mr. Desmond, you were brought into our office where we are right now, isn't it true that I also told you that no way whatsoever was I offering you any promises by way of a reduced jail sentence or any benefit by giving me the statement, isn't that true?
What's your answer, sir?
Q: Did I explain to you that once you gave this statement, you would be opening yourself up to felony murder?
A: That's correct.
[Torres, supra, 313 N.J. Super. at 153-54.]*fn2
In summation, defense counsel argued that Gamboa likely hoped to receive a benefit and the prosecutor conceded as much. Citing the test set out in State v. Carter, 85 N.J. 300, 314 (1981), defendant asserts that the evidence in question -- Gamboa's plea and sentence -- was discovered after his trial and was not reasonably discoverable before, that the evidence is material and probably would affect the verdict.
There is no doubt that defendant's analysis is sound, as far as it goes. Clearly, the evidence in question was discovered after the trial and was not discoverable before because it did not exist before the trial. It was certainly material, since Gamboa provided direct evidence of defendant's culpability for the murder. And, despite the State's assertion that its circumstantial case was so strong that the case did not turn on Gamboa's testimony, such an analysis is simply retrospective justification. Gamboa was critical to the State's case and his credibility or lack thereof clearly had the capacity to affect the verdict. See State v. Knight, 145 N.J. 233, 247-48 (1996); see also State v. Carter, 91 N.J. 86, 111 (1982). The problem with defendant's argument does not lie with his analysis, but outside of it. As noted, defendant learned of the Gamboa plea and sentence while his direct appeal was pending. He was granted permission to incorporate that "new" information in his pending appeal and in fact argued to us as follows:
D. The Prosecutor's Argument That The State Had Made No Plea Agreements or Promises to Gamboa In Exchange for His Statement And Testimony, Inviting The Inference That Gamboa Therefore Had No Interest In The Outcome Of This Trial, Was Misleading. In Addition Such Statements Amounted To Elaborate Vouching For The Credibility of Gamboa. (Not Raised Below)
THE TRIAL COURT DENIED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL DUE TO ITS WOEFULLY INADEQUATE INSTRUCTION TO THE JURY ON THE LAW REGARDING HOW TO EVALUATE THE CREDIBILITY OF GAMBOA, AN ACCOMPLICE AND THE CHIEF PROSECUTION WITNESS AGAINST DEFENDANT. IN ADDITION BASED ON THE FACTS OF THIS CASE, THE COURT SHOULD HAVE SUA SPONTE INSTRUCTED THE JURY THAT THE STATE COULD OFFER GAMBOA A PLEA AGREEMENT OR SENTENCE REDUCTION AFTER TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not Raised Below).
A. The Trial Court's Instruction To The Jury On "Expectation of Benefit" Was Totally Inadequate Since The Model Jury Charge On Accomplice Liability Was Required.
B. The Trial Court Should Have Sua Sponte Instructed The Jury That The State Had The Authority To Offer Gamboa A Plea Agreement Or Sentence Reduction After Defendant's Trial.
[State v. Torres, supra, 313 N.J. Super. at 138-39.]
Thus, he argued that the State unfairly contended at trial that it had "made no plea agreements with or promises to Gamboa in exchange for his statement and testimony." ` Id. at 152. However, we found no error, stating:
We find no reversible error considering the record as a whole. During summation, defense counsel told the jury that if they believed that Gamboa had testified with no thought of advantage, then they were "born last night." Defense counsel added that whether he expressed it or not, Gamboa had a hope that he would receive better treatment because of his testimony. Thereafter, the prosecutor in summation said that defense counsel had brought out a good point, and that there may have been an expected benefit in the mind of Gamboa. Finally, the trial judge instructed the jury that it could consider whether Gamboa had any hope of receiving a benefit and whether that affected his truthfulness.
Defendant's contention that the prosecutor's examination of Gamboa was misleading because the jury was not told that the prosecutor had the power to offer Gamboa a plea agreement or sentence reduction after the trial was over is not persuasive. The jury heard the relevant testimony that no promises had been made and that Gamboa had no expectation that he would be rewarded for his testimony.
Defendant relies on State v. Wilson, 128 N.J. 233 (1992), wherein the Court had found improper the prosecutor's remark "that he would never make a deal with Dyson" because he was part of the murder. Id. at 242. Wilson is distinguishable since in that case no one had testified in support of that assertion. Ibid. It is true that in Wilson, as here, the prosecutor's comment proved untrue because after the trial, the State's witness pled guilty to a lesser charge in exchange for the State's recommendation to dismiss the murder charge against him. In any event, the Wilson Court found that in view of the defendant's failure to object and the witness' testimony that he hoped the State would "look favorably" on the charges against him, the impropriety was not reversible error. Ibid.
Here, defense counsel in summation similarly pointed out to the jury that Gamboa hoped he would receive better treatment and the prosecutor candidly observed in summation that the point might have merit. The jury was free under the judge's charge to consider whether there was an expected benefit in Gamboa's mind, i.e., did he think that the court or prosecutor would treat him more favorably after trial because of his testimony. We find no unfair prejudice to defendant.
[Id. at 154-155.]
We conclude that the Gamboa issue addressed in our opinion fairly encompassed the issue as it is now presented. As a result, the issue has been previously decided and is res judicata. To the extent that the issue now presented is different than that adjudicated previously, defendant had all of the necessary information in hand at the time of his direct appeal and should have presented all aspects of the claim at that time. If his counsel could be deemed derelict in not presenting the matter properly on direct appeal, defendant had every opportunity to rectify that error in his first PCR application, but did not. Indeed, a review of our unpublished decision affirming the denial of that first PCR reflects that no Gamboa-related issue was even mentioned. We infer that the issue was not raised in his second PCR application either since that petition was denied on the basis that the issues raised were all previously addressed in the first PCR petition, and we summarily affirmed that determination.
Now, twelve years after his sentencing, defendant seeks to present the Gamboa question, or a variation of it, under the rubric of a motion for a new trial based on newly discovered evidence. It is clear that the most recent PCR judge erred insofar as he rejected the motion on timeliness grounds. See R. 3:20-2 (a motion based on newly discovered evidence may be made at any time). Likewise, the judge erred in stating that there was "no newly discovered evidence." As we have earlier indicated, the evidence was newly discovered if viewed in relation to defendant's trial.
Nevertheless, the reason defendant's motion was properly denied was that it was already decided or, if it was not, defendant has forfeited his right to further review by not raising the issue in either of his two prior PCR applications. To this extent, the rules governing new trial motions are not materially different from those governing PCR. Had defendant brought these claims in a PCR proceeding they would have been barred. See R. 3:22-4, 3:22-5. The results should not be different because the issues have been couched differently.