December 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VENTURA RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-10-1051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Sabatino and Alvarez.
Defendant, Ventura Rodriguez, appeals from an April 7, 2006, order denying his petition for post-conviction relief (PCR) following the conclusion of an evidentiary hearing. We affirm.
After a jury trial, defendant, who absented himself from the trial after receiving in-court notification, was convicted of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:2-6 (count one)*fn1 ; first degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:2-6 (count two); and possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a), and N.J.S.A. 2C:2-6 (count three). Defendant, who was mandatory extended term eligible, was sentenced to twenty-five years with parole ineligibility of twelve and one-half years on count two.
N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7. The remaining counts were merged. Defendant appealed, and in an unreported decision, we affirmed defendant's conviction. State v. Rodriguez, No. A-2150-01 (App. Div. Dec. 16, 2003). Defendant's petition for certification was denied on March 2, 2004. State v. Rodriguez, 179 N.J. 369 (2004).
Defendant's pro se PCR application raised ten points of alleged error. The supplemental brief subsequently filed by assigned counsel raised two issues, which were the only points addressed by the motion judge. In addition to urging reversal of the PCR decision, it is further contended the motion court's failure to consider the ten additional points was also error.
We recite the facts pertinent to this appeal. On April 17, 1996, a package containing approximately seven ounces of cocaine addressed to a "Lori Martinez" in Paterson was intercepted and searched by the United States Customs Office at JFK airport. Hector Jimenez, employed in a dual capacity for the United States Customs and the Passaic County Prosecutor's Office, was notified of the arrival of the package. The package was later delivered to the Passaic County Prosecutor's Office in Paterson. When the name on the box could not be matched with the address, Jimenez decided to conduct a controlled delivery, during which he would pose as a postal inspector and attempt to deliver the package. Jimenez scheduled the controlled delivery for April 24 at the River Street Station in Paterson, the post office assigned to receive mail for the address listed on the package. The post office was within a block of the Blessed Sacrament School. A woman who identified herself as Lori Martinez attempted to pick up the package and was informed it was still en route. She returned that afternoon, displayed identification, and was given the package. She was immediately apprehended. The woman told Jimenez that her real name was Maria Alvarez and that she was picking up the package for two men waiting outside in a red car. She agreed to cooperate, and approached the vehicle in which defendant was a passenger with an empty box. The driver, who was standing outside the car, exclaimed, "No, no, no, that's not my package," as Alvarez attempted to give it to him. He then jumped into the car and drove away, followed by police. Both occupants of the vehicle fled on foot when a crash ended the chase.
Alvarez explained to Jimenez that defendant asked her to pick up a package for him at the post office. Alvarez was acquainted with defendant because she had her son's hair cut in his barber shop, located on the first floor of her apartment building. She had been offered drugs and beer in exchange for her work as a courier. Defendant accompanied her when she obtained false identification in the name of Lori Martinez. Alvarez did not know defendant by any name other than "Ventura."
Jimenez later went to the barber shop and noticed a magazine with an advertisement for the shop containing defendant's picture, which Jimenez recognized as the passenger in the red vehicle.
During the cross-examination of Alvarez at trial, defense counsel elicited the fact that she could be sentenced on the charges, to which she had entered a guilty plea, from between ten to twenty years in prison. She acknowledged that under the terms of the plea agreement she would only serve fifteen years in prison, five without parole. She admitted that when she entered her guilty plea, the judge advised her that she could be sentenced to as little as ten years with parole ineligibility. Defense counsel did not ask her about the actual sentence he knew she had received, ten years without parole ineligibility.
In his closing, defense counsel referred to the photographs admitted into evidence as "mug shots," and told the jury that defendant had been previously arrested. The defense theory was that defendant had been misidentified by Jimenez, who simply picked out his photograph after Alvarez gave him the name "Ventura."
After an evidentiary hearing, the PCR motion judge found that defendant had not established that trial or appellate counsel's performance was so deficient as to make a prima facie case of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 697-98 (1984). On this appeal, defense counsel raises the following points:
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL.
A. TRIAL COUNSEL'S FAILURE TO ELICIT THE ACTUAL SENTENCE THAT WAS IMPOSED ON MS. ALVAREZ DURING CROSS-EXAMINATION, AND HIS INFORMING THE JURY THAT THE DEFENDANT HAD BEEN PREVIOUSLY ARRESTED IN SUMMATION, SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE IT WEAKENED THE DEFENSE STRATEGY OF PERSUADING THE JURY THAT MS. ALVAREZ HAD A MOTIVE TO WRONGLY IMPLICATE THE DEFENDANT AS A RESULT OF THE PLEA AGREEMENT, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.
B. TRIAL COUNSEL'S FAILURE TO ELICIT THE ACTUAL SENTENCE THAT WAS IMPOSED ON MS. ALVAREZ DURING CROSS-EXAMINATION, AND HIS INFORMING THE JURY THAT THE DEFENDANT HAD BEEN PREVIOUSLY ARRESTED IN SUMMATION, SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE IT CONTRIBUTED TO THE STRENGTH OF THE STATE'S CASE, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.
POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENTMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.
Defendant, pro se, makes this additional claim:
POINT I APPELLANT WAS SUBSTANTIVELY DENIED THE EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL AT THE LAW DIVISION, SINCE SHE FAILED TO FOLLOW THE PROCEDURES ESTABLISHED IN STATE V. WEBSTER, 187 N.J. 254 [(2006)], WHICH DIRECTLY IMPACTED HIS RIGHTS TO A FAIR EVIDENTIARY HEARING ON THE ISSUES RAISED IN APPELLANT'S PCR, IN THE VIOLATION OF HIS RIGHTS UNDER N.J. CONST., ART. I, PAR. 10.
(A) INEFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL.
The thrust of defendant's pro se argument is that pursuant to State v. Webster, 187 N.J. 254 (2006), the failure of counsel to at least incorporate his PCR issues into the brief so they could have been addressed by the motion judge, itself constituted ineffective assistance of counsel. He seeks reversal and remand for that reason. His ten points were:
POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT REQUIRING THE STATE TO ESTABLISH THE RELATION BETWEEN THE FEDERAL AND STATE OFFICERS BEFORE ALLOWING THE ILLEGALLY SEIZED EVIDENCE TO BE ADMITTED AT TRIAL, CONTRARY TO N.J. CONST. ART[.] [I], PAR. 7 AND 10.
POINT II THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE STATE TO USE EVIDENCE SEIZED BY A STATE OFFICIAL ACTING UNDER COLOR OF STATE LAW IN VIOLATION OF N.J. CONST., ART. [I], PAR. 7.
POINT III THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING PETITIONER TO BE TRIED ON ILLEGAL SEIZED EVIDENCE THAT WAS THE ROOT OF THE POISONOUS TREE, CONTRARY TO U.S. CONST., FOURTH AND FOURTEENTH AMENDMENTS, AND N.J. CONST., ART. [I], PAR. 7.
POINT IV PETITIONER'S SEIZURE INDUCED A STATE OF AMNESIA, WHICH PREVENTED HIM FROM APPEARING FOR TRIAL, IN VIOLATION OF STATE V. HUDSON, 119 N.J. 165 [(1990)], CONTRARY TO N.J. CONST., ART. [I] PAR. 10.
POINT V PETITIONER'S APPELLATE ATTORNEY FAILED TO PROVIDE THE APPELLATE DIVISION WITH TRANSCRIPTS ON THE COURT'S HUDSON CHARGE, WHICH INEVITABLY COMPELLED THE APPELLATE JUDGES TO RENDER A DECISION ON AN INADEQUATE RECORD, IN VIOLATION OF PETITIONER'S RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL, CONTRARY TO U.S. CONST., SIXTH AND FOURTEENTH AMENDMENTS, AND N.J. CONST., ART. [I], PAR. 1 AND 10.
POINT VI COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE RELATIONSHIP BETWEEN FEDERAL OFFICERS AND STATE INVESTIGATOR WAS NOT DEVELOPED TO DETERMINE IF THE FEDERAL OFFICERS WERE ACTING UNDER COLOR OF STATE LAW WHEN SEIZING CONTRABAND, IN VIOLATION OF U.S. CONST., FOURTEENTH AND SIXTH AMENDMENTS, AND N.J. CONST., ART. [I], PAR. 7 AND 10.
POINT VII COUNSEL FAILED TO CALL ANY WITNESSES FROM SALON TO SUPPORT HIS THEORY THAT SOMEONE IN THE BARBER SHOP SHOWED THE PETITIONER'S PHOTO FROM A MAGAZINE, WHICH WAS THE BASIS OF A SUGGESTIVE IDENTIFICATION, IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS.
POINT VIII TRIAL COUNSEL COMPROMISED PETITIONER'S RIGHTS TO A FAIR TRIAL BY TELLING THE JURY THAT HE WAS PREVIOUSLY ARRESTED FOR SOME UNRELATED OFFENSES, IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTION RIGHTS TO A FAIR TRIAL.
POINT IX INVESTIGATOR HECTOR JIMENEZ WAS PROFILING PACKAGES FROM SOUTH AMERICA SINCE HE HAD PERSONAL SUSPICION IN VIOLATION OF THE COLOR OF LAW, CONTRARY TO THE STATE AND FEDERAL CONSTITUTION.
POINT X PETITIONER'S EXTENDED TERM SENTENCE MUST BE REVERSED, SINCE THE STATE SUBMITTED AN ERRONEOUS JUDGMENT OF CONVICTION TO SUSTAIN PETITIONER'S SENTENCE, WHICH MUST BE REMAND[ED] FOR RE-SENTENCING.
Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland, supra, 466 U.S. at 685, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692. The right to counsel means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege.
N.J. Const. art. I, ¶ 10. To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, defendant must show that counsel's performance truly was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must establish that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The "benchmark" for assessing ineffective assistance of counsel claims is whether counsel's professional errors "'materially contributed'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).
We agree with the motion judge that trial counsel was not ineffective because when cross-examining Alvarez, he did not elicit the actual sentence she received, ten years imprisonment. In his written opinion, the motion judge found that her motive to lie, which was the expectation of favorable treatment by the prosecutor in exchange for testimony favorable to the State, was adequately explored when she was asked about sentencing ranges. He explained that, "alerting the jury to the actual sentence Alvarez received would not have strengthened [d]efendant's case with respect to undermining Alvarez's credibility." The jury was made aware of the salient facts, that Alvarez could be sentenced from ten to twenty years and had much to gain by cooperating with the authorities.
In closing argument, defense counsel said the following:
First thing is he says well, let me see if I can find if this man was ever arrested before, if we've got mug shots. Ah, ha. What does he find? He finds that there is a Ventura Rodriguez who was at one time arrested. That's how he gets his mug shot. And you'll have this evidence with you.
Does the picture here look anything like the picture in the magazine? Jimenez says yeah, cross-examination. They look exactly alike. Contours of the face. Contours of the face. Now, because [defendant] was ever arrested has no bearing on this case, only has a bearing with respect to a photograph. But not well, [defendant] must have a prior record because other than having a prior record he wouldn't be photographed. People are photographed and things don't work out for the State and there's a person that will be found not guilty and there's what they call an expungement. So all because somebody's arrested and a mug shot is taken, that doesn't mean a person has a record as a convicted criminal. So you have to keep that in mind.
The photograph shown to the jury was an undated cropped mug shot. The defense theory was that Jimenez, rather than engaging in a thorough investigation to learn the identity of the men in the vehicle, went into the barber shop based on Alvarez's statement and merely asked those present to point out a person named "Ventura" in the magazine ad. The identification of Ventura as the man in the car, it was argued, was not made as a result of Jimenez's observation of defendant at the scene, but merely as a result of him being told who Ventura was in the group of men in the ad. Since the co-defendant had a strong motive to lie - namely receipt of a more favorable sentence - her claim that Ventura set up the buy should not be believed. Therefore, it was claimed, the State had not presented proof beyond a reasonable doubt as to identity.
The manner in which defense counsel described the picture was inartful as he did not need to tell the jury that the photo was a mug shot or that defendant had been previously arrested in order to make the argument. The strategy itself, however, was legitimate, and given the proofs, a reasonable defense theory. The strategy as implemented, however, resulted in professional error. Nonetheless, defendant fails to meet the second prong of the Strickland test. Despite the professional error, there is no reasonable probability that but for the error the results of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. In this case, the co-defendant's statements, as well as the identification by Jimenez, constitute overwhelming evidence against defendant. In addition, the judge gave the Model Jury Charge as to police photos, and told the jury, "you're not to consider the fact that an agency obtained a photograph of the defendant as prejudicing him in any way." It is presumed that jurors follow instructions. State v. Nelson, 173 N.J. 417, 478 (2002) (citing State v. Manley, 54 N.J. 259, 270 (1969)). Counsel's professional error does not undermine confidence in the guilty verdict, as the motion judge concluded, and no relief is warranted under Strickland.
Defendant also contends that his appellate counsel was ineffective in that he failed to raise the issues of Alvarez's sentence and trial counsel's mention of the mug shots. The first was simply not a professional error. The second was not of sufficient magnitude as would have prejudiced the outcome. Therefore, appellate counsel's failure to raise these issues was not ineffective assistance.
Without a doubt PCR counsel erred by failing to incorporate defendant's ten points into her brief. Webster, supra, 187 N.J. at 257. The first prong of the Strickland test is thereby satisfied. Brief discussion as to the merits of the omitted points is accordingly warranted.
Defendant's Points I-III, VI and IX challenge the validity of the warrantless search in this case. That issue was comprehensively addressed on direct appeal. Rodriguez, supra, slip op. at 14-17. Defendant uses different words to parse out essentially the same attack, namely, that the search was illegal. Pursuant to Rule 3:22-5, issues previously adjudicated cannot be raised by way of PCR. State v. Harris, 181 N.J. 391, 494 (2004). The issue will not be revisited.
In Point IV, defendant also raises, for a second time, his claim that an epileptic seizure caused him to suffer from amnesia which prevented him from appearing at trial. As we previously said, his excuse was "incredible" and under the principles set forth in State v. Hudson, 119 N.J. 165 (1990), his failure to appear constituted a waiver of his right to be present. Rodriquez, supra, slip op. at 13-14. He is barred from reconsideration of this issue on appeal. R. 3:22-5.
In a similar vein, defendant argues in Point V that his appellate counsel's failure to obtain a transcript for review, on direct appeal, of the in-court notification of his trial date was also ineffective assistance of counsel. On the direct appeal, we had before us defendant's signed Hudson notice for the trial date of May 7, 2001. An attorney actually appeared on his behalf on that date, and the court postponed the start of the trial for one day as the attorney represented that defendant might be retaining him as trial counsel. The trial did not actually start until May 8 as that second attorney was not retained. Clearly, defendant knew the date of trial. Rodriguez, supra, slip op. at 12. Obtaining a transcript was unnecessary.
Defendant contends that his trial attorney's failure to present witnesses to refute Jimenez's identification of him was error. See Point VII. This assertion does not make for a meritorious argument as it is not supported in any fashion. "Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense where none actually exists." Velez, supra, 329 N.J. Super. at 133.
Defendant's final point as to his sentence also lacks merit. This sentence was his second for a drug distribution offense and he was therefore mandatory extended term eligible pursuant to N.J.S.A. 2C:43-6(f). Additionally, the subject of the propriety of his sentence was already addressed on direct appeal and he is precluded from raising the issue a second time.
As all the points defendant raised by way of his pro se PCR were addressed on direct appeal, or in and of themselves lack merit, counsel's failure to incorporate them into the PCR brief did not prejudice the outcome. Had the arguments been considered, the outcome of the PCR application would have been the same. Accordingly, PCR counsel's failure to raise defendant's pro se theories, and the motion judge's failure to consider them, does not meet the second prong of the Strickland test. PCR counsel was therefore not ineffective and no meritorious grounds for reversal of the PCR decision have been established.