July 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWIN TORRES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Ind. No. 96-10-1570.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2007
Before Judges Parrillo and Sapp-Peterson.
Defendant Edwin Torres appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
In November 1998, a jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree kidnapping, N.J.S.A. 2C:13-1(a); first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; second-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree conspiracy to commit armed robbery and armed burglary, N.J.S.A. 2C:5-2; second-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree theft of an automobile, N.J.S.A. 2C:20-7; third-degree theft of an automobile, N.J.S.A. 2C:20-7; third-degree theft of movable property, N.J.S.A. 2C:20-7; and third-degree automobile theft, N.J.S.A. 2C:20-3. These convictions stemmed from a three-month burglary crime spree that culminated in the fatal death of Howard Lewis, a resident in the third home burglarized. Lewis asphyxiated on his own vomit after being bound by defendant and beaten by co-defendant Afrim Tairi.
Prior to trial, defense counsel moved to suppress statements defendant made to police, arguing that the statements were involuntarily given while defendant was under the influence of drugs and alcohol. The motion was denied and the statements introduced before the jury during trial. Although defendant's cousins were available to testify as to their observations of defendant at the time of his arrest, defense counsel chose not to call them as witnesses.
Defendant was sentenced to an aggregate term of life plus sixty-nine years with a sixty-year parole disqualifier. We affirmed the conviction and sentence imposed in an unpublished opinion. State v. Torres, No. A-5292-98T4 (App. Div. December 10, 2001). The Supreme Court denied defendant's petition for certification in an order filed February 14, 2002. State v. Torres, 171 N.J. 338 (2002).
Defendant filed a pro se petition for PCR on April 25, 2002, arguing that his trial counsel was ineffective because he (1) did not properly investigate his claim that he was too intoxicated at the time of his arrest to have made a knowing and voluntary waiver of his rights under Miranda*fn1 or to have given a knowing and voluntary statement about his involvement in the offenses; (2) failed to call witnesses who were available to testify and who had personal knowledge of his physical and mental condition at the time of his arrest; and (3) in addition to telling the jury that he was guilty of some of the charges, also told the jury that he would testify, but then told him that he could not testify. Additionally, defendant claimed the prosecutor committed prosecutorial misconduct and that the court gave improper jury instructions. Finally, defendant argued that the attorney assigned to represent him in connection with the direct appeal had limited contact with him prior to submitting a brief on his behalf and failed to argue that trial counsel was deficient despite the clear showing of trial counsel's deficiencies in the record.
After hearing oral argument, the PCR judge denied defendant's request for an evidentiary hearing and also denied PCR relief to defendant. In a written opinion, Judge Conte ruled that "[d]efendant has failed to present any prima facie evidence that would require holding an evidentiary hearing. Arguments raised by the defendant are naked allegations in which he has not corroborated with any proof." The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE COURT ERRED WHEN IT REFUSED TO GRANT DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF.
A. THE COURT ERRED IN ITS RULINGS DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
B. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
C. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
D. FAILURE TO GRANT AN EVIDENTIARY HEARING.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Conte's written opinion of April 5, 2005. We add the following comments.
Judge Conte concluded that Rule 3:22-4 precluded defendant from raising the bulk of the issues set forth in his petition because they "should have and could have been raised on direct appeal" and that defendant failed to meet "his burden of showing that the enforcement of the [rule] would result in fundamental injustice, nor has he shown that such denial would be repugnant to the United States or the New Jersey Constitutions."
In his direct appeal, defendant raised two claims of trial error: the failure of the trial court to grant his motion for severance and separate trials "of counts of the indictment concerning entirely separate crimes" and the court's imposition of an excessive sentence. Rule 3:22-4 provides, Any ground for relief not raised in a prior proceeding ... is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
All of the facts necessary to address whether his statement should have been suppressed and his allegations of prosecutorial misconduct and improper jury instructions are contained in the suppression hearing and trial record and were readily available for resolution on direct appeal. Further, we agree with Judge Conte's conclusion that defendant failed to put forth any basis upon which the court could find that enforcement of the rule would cause a fundamental injustice.
Next, recognizing that defendant's ineffective assistance of counsel claims were not similarly barred, Judge Conte found that this claim was equally meritless. The judge reviewed each of the claimed defense errors and found that the supposed errors were reasonable strategic decisions. We agree.
Judicial review of a defense counsel's performance is "highly deferential." Strickland v. Wash., 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984). In order to establish a claim of ineffective assistance of counsel, a petitioner must first show that counsel's performance was "deficient." State v. Fritz, 105 N.J. 42, 52 (1987)(quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). This requires a showing that defense counsel made "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, petitioner must establish that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Thus, "defendant must show that the deficient performance prejudiced the defense." Ibid.
In State v. Arthur, 184 N.J. 307, 312 (2005), the Court addressed the question of effectiveness of counsel where defense counsel failed to call a particular witness. There, the defendant was charged with selling drugs to a buyer. Id. at 313. At trial, the buyer testified that another man had sold her the drugs. Id. at 315. While the man implicated as the dealer had initially told the defense attorney that he was the one who had sold the drugs to the buyer, he changed his story upon learning that he would be prosecuted, and the defense decided not call him as a witness. Id. at 316-17. On petition for post-conviction relief, the defendant claimed that the failure to call the witness was ineffective assistance of counsel. Id. at 312.
The Court noted, "[b]ecause of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). That is, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. The Court reasoned that the decision not to call the dealer was a reasonable strategy, given the fact that the dealer was likely to testify that he had not sold the drugs. Id. at 320.
In the present case, Judge Conte concluded, The defendant argues that he was intoxicated at the time of arrest and interview by police. He asserts that his trial counsel failed to probe this issue. However, with respect to his being intoxicated, the facts reveal that defendant was of the right mind to pretend that he was sleeping while investigators spoke in the interview room. It was only after defendant saw DeJesus did he begin to confess his involvement in the crime. Trial counsel raised these issues of intoxication at trial which were decided on by the Honorable William Meehan, P.J.S.C. It cannot be said that the trial judge did not adequately rule on this issue considering the amount of evidence presented by the State and by the defendant's own admissions. Based on the foregoing reasons, defendant has failed to satisfy the two-prong test in accordance with Strickland.
We are persuaded, as was the PCR judge, that given the conduct of defendant at the time of his arrest, we cannot conclude that defense counsel's decision not to call defendant's cousins, whose proffered testimony was confined to describing defendant's eyes as bloodshot, was beyond the "wide range of reasonable professional assistance." Id. at 319. Moreover, defense counsel presented several arguments in favor of suppression, including intoxication, but focused on undermining the signed Miranda card with evidence of discrepancies in the report. As such, defendant has not shown that counsel was deficient. See Arthur, supra, 184 N.J. at 319-20.
Further, assuming the testimony of the cousins had been offered, it is unlikely that their testimony would have resulted in suppression of defendant's statement, since the court also had the benefit of the officer's testimony as to defendant's condition at the time of his arrest. Therefore, the failure to call his cousins as witnesses cannot be said to have materially contributed to his conviction. See Fritz, supra, 105 N.J. at 58.
Likewise, Judge Conte correctly concluded that the remaining challenges to defense counsel's performance failed to meet the two-pronged test set forth in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The judge stated, With respect to defendant's claim that trial counsel was incompetent for failing to raise the issue that defendant asked for counsel at the time of his arrest, the record is clear that at the motion to suppress hearing, defendant never asked for counsel or to remain silent. This point is without merit.
With respect to the claim that trial counsel was deficient when he failed to cross-examine seventeen state witnesses, the prosecutor correctly points out that many of the witnesses that trial counsel did not wish to cross-examine had very little impact on the outcome of the case. Trial counsel's decision to allow direct examination of these witnesses without cross-examination does not render his representation ineffective.
With respect to the claim that trial counsel was deficient when he failed to call defendant as a witness after telling the jury he would in his opening statement, the defendant contends that this strategic move shows trial counsel failed to adequately represent him. However, the defendant fails to understand that trial [counsel's] decision not to call him was part of this trial strategy. If counsel believed, before the State presented its evidence, that defendant may be a credible and strong witness, then it was within his discretion to tell the jury that the defendant may be called as a witness. If, after the State presented its case, counsel believed his client would not be an effective witness, he was again within his discretion not to call defendant. Furthermore, proper jury instructions were given regarding the defendant's decision not to be called as a witness.
Despite what trial counsel may have advised, the defendant was personally addressed by the Court regarding his choice to testify. The defendant himself made the decision. Defendant's claim with regard to this issue is without merit.
With respect to trial counsel[']s failure to object to jury charges and to the prosecutor's opening and closing statements counsel did not object because both he and the state agreed as to the jury instructions. Furthermore, the remarks made by the prosecutor were neither inflammatory nor improper. Trial counsel did not object because the prosecutor was well within his bounds when delivering his arguments. Defendant's claim that trial counsel was deficient in his representation with regard to this issue is without merit.
[D]efendant contends that he received ineffective assistance of counsel at the appellate level. The Supreme Court's decision in Strickland then applies to this claim. Although an attorney does not have to raise issues which he considers frivolous on appeal, he does have a duty to raise meritorious issues which are likely to lead to the defendant's conviction being reversed. Jones v. Barnes[,] 463 U.S. 745[, 103 S.Ct. 3308, 77 L.Ed. 2d 987] (1983). However, counsel cannot be rendered ineffective for failing to raise meritless issues. State v. Worlock,  N.J. 596[,] 625 (1990). Simply because defendant's appellate counsel did not raise the issues that present counsel raises does not make him ineffective. Appellate counsel's decision to argue defendant's case in another fashion does not make his strategy deficient so as to meet the Strickland test.
Defendant's claim with regard to this issue is without merit.
Finally, we also agree that there was no basis to conduct an evidentiary hearing. The decision to grant or deny an evidentiary hearing on a PCR petition is a discretionary one that an appellate court reviews only for abuse of discretion. See State v. Preciose, 129 N.J. 451, 462 (1992). An evidentiary hearing is required only when there is a dispute of fact respecting matters which are not of record. Ibid. Defendant has not pointed to any material facts that were in dispute, which would require oral testimony. Although the fact of defendant's intoxication was disputed, a finding of intoxication need not be made to determine ineffective assistance of counsel. The operative inquiry in such a claim for ineffective assistance of counsel would not be whether or not defendant was in fact intoxicated, but whether or not counsel appropriately declined to probe the issue at trial. Defendant fails to suggest how oral testimony would have addressed this issue. As such, a hearing was not warranted. Ibid.