January 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN SOTO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-10-1184.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Lintner and Graves.
Defendant Juan Soto appeals from an order entered on September 14, 2006, denying his petition for post-conviction relief (PCR). On appeal, defendant presents the following arguments:
POINT I DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING AND/OR FOR THE PCR COURT TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW.
A. TRIAL COUNSEL FAILED TO REQUEST A UNANIMITY CHARGE ON THE PREDICATE FELONIES; THEREFORE, THE FELONY MURDER CONVICTION MUST BE REVERSED.
B. TRIAL COUNSEL USED CO-DEFENDANT ROBLES TO INTERPRET FOR DEFENDANT.
C. TRIAL COUNSEL FAILED TO CONSULT ADEQUATELY WITH DEFENDANT.
POINT II DEFENDANT'S CONVICTIONS MUST BE REVERSED OR, IN THE ALTERNATIVE, THE MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE APPELLATE COUNSEL FAILED TO RAISE ANY OF THE AFOREMENTIONED ISSUES.
POINT III DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE IMPROPER PROSECUTORIAL STATEMENTS DURING SUMMATION RESULTED IN FUNDAMENTAL INJUSTICE BY DEPRIVING DEFENDANT OF A FAIR TRIAL.
Except for defendant's claim that trial counsel failed to adequately communicate and confer with him regarding his case, we are convinced all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by the PCR court. But defendant's claim that he was prejudiced by trial counsel's failure to communicate and confer is remanded for further proceedings in light of this opinion.
Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a); felony murder, N.J.S.A. 2C:11-3(a)(3); robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:5-2; kidnapping, N.J.S.A. 2C:13-1(b); burglary, N.J.S.A. 2C:18-2(a); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39- 4(a); and possession of a crossbow for an unlawful purpose, N.J.S.A. 2C:39-4(d). At the sentencing hearing on April 24, 1998, the court merged the aggravated manslaughter and burglary convictions into the felony murder conviction and sentenced defendant to life in prison, with thirty years of parole ineligibility. After appropriate mergers, defendant received a concurrent twenty-year sentence with ten years of parole ineligibility for robbery, and the court imposed a concurrent thirty-year term with fifteen years of parole ineligibility on the kidnapping conviction. On appeal, we reversed defendant's kidnapping conviction, but we affirmed his other convictions and his sentence. State v. Soto, 340 N.J. Super. 47 (App. Div.), certif. denied, 170 N.J. 209 (2001).
On defendant's direct appeal, we summarized the facts of the case as follows:
The State presented evidence to show that Mohamed Maghoub, the owner of a used car lot, taxicab company, and several rental properties in Trenton, was introduced to Ivelisa Figueroa in January 1996. Maghoub and Figueroa became friends. Figueroa told defendant about Maghoub and discussed a plan to rob Maghoub. Defendant asked three of his friends----Martin Robles, Elvis Terron and Timmy Terron----to help him in the robbery. Except for Timmy, all agreed.
Around 9:30 p.m. on January 30, 1996, Figueroa visited Maghoub at his house. While there, she called defendant and told him to proceed with the robbery. Defendant, Robles, and Elvis drove to an area near Maghoub's house. After their arrival, they decided not to commit the robbery. When they went to leave however, the car would not start. Defendant called Timmy and asked him to drive over and help them jump-start the car. While waiting for Timmy to arrive, the three men changed their minds again and decided to proceed with the robbery.
Defendant, Robles, and Elvis entered Maghoub's house through a rear door and saw Maghoub sitting on the living room couch with Figueroa. Defendant was carrying a shotgun and Robles was carrying a crossbow. Defendant "racked" a round into the shotgun chamber to scare Maghoub and told him not to move. Maghoub immediately screamed and jumped at defendant, grabbing the shotgun. They wrestled for the shotgun, moving into the hallway and falling on the floor, both of them still holding onto the gun. Elvis tried to wrap duct tape around Maghoub's mouth to stifle his screams. In the struggle, the gun went off and Figueroa was struck in the thigh. Defendant yelled for Robles to help him. Robles gained control of the shotgun and started hitting Maghoub on the head with it.
Defendant then ran upstairs to look for a briefcase which Figueroa said contained money. Defendant returned downstairs. Maghoub was on the floor and still breathing at that time. Defendant searched through Maghoub's pockets, and removed his wallet. He also removed two rings and two bracelets from the victim.
Defendant, Figueroa, Robles, and Elvis then fled through the backdoor of the house. The group ran through the backyard down to a railroad yard where they hid the shotgun and crossbow and broke open and left the brief case which only contained documents relating to Maghoub's used car lot.
[Id. at 54-55.]
Two days later, on February 1, 1996, Figueroa turned herself in to the police. On February 2, 1996, Detective David Maldonado sent out a general alarm for defendant. Within hours, a Philadelphia police officer, who was patrolling the Philadelphia International Airport, heard the report and located defendant at an airline ticket counter. Defendant was arrested and taken to the Philadelphia Police Headquarters.
After Maldonado was informed of defendant's arrest, he immediately obtained an arrest warrant for defendant and, along with Detective Jack Kemler, drove to Philadelphia to interview defendant.
Maldonado, who spoke fluent Spanish, interviewed defendant in Spanish. He read defendant a Spanish Miranda form and had defendant read and sign it. Defendant initially told Maldonado he knew nothing of Maghoub's murder. After Maldonado described the details the police knew, defendant began to weep and admitted he was responsible for the robbery but not the murder. Maldonado interviewed defendant for about an hour, between 7:00 and 8:00 a.m.
After defendant executed the waiver of extradition form, Maldonado and Kemler escorted him back to Trenton. During the drive to Trenton, defendant again indicated he was only responsible for having the shotgun but not for the death of the victim.
Once they arrived at the Trenton Police Headquarters, Maldonado obtained a formal written statement from defendant. Defendant explained the events that led to the murder. He admitted he held the shotgun when he and the co-defendants entered Maghoub's home, that Maghoub was badly beaten, and that he rummaged through Maghoub's pockets looking for money.
The police arrested Elvis, Timmy, and Robles on February 1. They also confiscated the clothing and sneakers Elvis wore at the time of the homicide. Subsequent analysis of the clothing and sneakers revealed the presence of blood, although it could not be determined whose blood it was. Later that same day, Elvis took the police to a railroad yard near Olden Avenue where the police found a shotgun, crossbow, and Maghoub's briefcase. An analysis of the weapons recovered at the railroad yard revealed that blood found on the shotgun belonged to the victim. A ballistics analysis performed by the New Jersey State Police determined that the shotgun pellets recovered from the wall of Maghoub's house were fired from the shotgun recovered at the railroad yard.
Later, the police searched Timmy's apartment and found several of the victim's rings in a pipe under the kitchen sink. An analysis of the calling records of defendant's cellular telephone as well as Robles'[s] cellular telephone revealed that several calls were placed or received by defendant to both Robles and Timmy shortly before and after the murder but none between 9:53 p.m. and 11:27 p.m. on January 30.
An autopsy was performed on Maghoub by Doctor Raafat Ahmad, the Chief Medical Examiner of Mercer County. Doctor Ahmad concluded Maghoub died between the late evening hours of January 30 and the early morning hours of January 31. She found his head injuries were caused by blunt force trauma, consistent with being bludgeoned with the barrel of a shotgun. Doctor Ahmad ruled the death a homicide and determined the cause of death was due to massive cranial cerebral injuries.
Defendant did not testify nor did he present any evidence or witnesses.
[Id. at 56-58.]
Prior to trial, defendant attempted to suppress his statements to the police, claiming the procedure followed when he waived his right to an extradition hearing was defective. Defendant's motion was denied by the trial court and, on appeal, we affirmed the trial court's decision. Thus, as the trial court noted at defendant's sentencing:
Juan Soto's own words were true, and they were the words that convicted him.
The other evidence that was put forth at the trial corroborated things that [defendant] said . . . they corroborated the facts that were developed during the investigation, but it was the things that Juan Soto said himself that resulted in his conviction.
The prosecutor has talked about the facts. These facts are indelibly etched in my mind. The most horrifying aspect of this incident is the armed home invasion. It's not a burglary or a robbery or a kidnapping or a murder, but it's all of those things, but a man was murdered in his home, a place that should be secure . . . and Juan Soto led that invasion with a gun, a sawed-off shotgun . . . .
In December 2002, defendant filed a PCR petition, in which he asserted the following claim:
BECAUSE ONE OF THE THREE ALTERNATIVE FELONY THEORIES SUBMITTED AS THE BASIS FOR THE FELONY MURDER CONVICTION IS NOT SUPPORTED BY THE EVIDENCE, THE FELONY MURDER CONVICTION CANNOT STAND, AS THE JURY WAS NOT INSTRUCTED TO AND DID NOT DECLARE WHICH OF THE FELONY THEORIES IT CHOSE AS THE PREDICATE FELONY.
Defendant's PCR application was originally scheduled for April 25, 2006, but the court granted defendant's request for an adjournment. Defendant's PCR counsel explained that more time was needed to investigate two new issues:
MR. LEEDS: Yes, Judge, as I had indicated to the [c]court in chambers, Mr. Soto has apprised me of two issues that are additional to that which has already been presented in the original post[-]conviction relief brief, and quite frankly, the supplemental that I have already filed. Specifically, there is an issue regarding the co-defendant, Mr. Robles, Martin Robles having acted as an interpreter on a few occasions, an interpreter between Mr. Soto, the defendant, and his attorney Mr. Hartmann.
Additionally, the defendant has advised me of a potential alibi witness, and I'd like the opportunity to conduct an investigation, and thereafter, if appropriate, make additional submissions.
When the matter returned to court on August 29, 2006, defendant's PCR counsel argued that defendant's trial counsel was ineffective because he used co-defendant Martin Robles as an interpreter "on at least three separate occasions." During the hearing, it was determined that Robles interpreted conversations between defendant and his trial attorney on three occasions between September and December 1996. According to Robles, the discussions involved the following matters: (1) defendant "would be receiving a translator to assist during interviews," (2) "the case was not looking good for the [S]tate," and (3) there was a court order that allowed "the [S]tate to have some of the defendant's hair taken for DNA samples." In rejecting defendant's claim that he was prejudiced by the use of Robles as an interpreter, the court noted that defendant was indicted in October 1996, and his trial began in January 1998. Thus, the trial court correctly concluded that defendant had failed to establish a prima facie claim of ineffective assistance of counsel based on Robles's limited role as an interpreter because Robles interpreted relatively insignificant discussions that took place more than a year before defendant's trial.
During oral argument on August 29, 2006, PCR counsel also asserted that defendant was denied effective legal assistance because trial counsel failed to consult and communicate with defendant and to keep defendant informed of important developments in the course of the prosecution:
Now, the defendant has indicated to me that he did have the use of a court interpreter during court proceedings, but that this was very limited in nature, that they didn't have the opportunity to actually sit down and talk about the case, and talk about questions, and find out [if] Mr. Soto had certain questions about the discovery and things of that nature. The trial attorney apparently kept telling him the [S]tate's case is weak, the [S]tate's case is weak. And he had questions about that, why is it weak, what's going on. Again, he had questions about him testifying.
And he didn't have the opportunity to do that, go over that with his attorney, and so he is saying, look, the only interviews I had before trial without a court interpreter was [when] the co-defendant was used. The only other times [were] in court. . . .
[T]his was a court interpreter, . . . essentially used for court purposes. And that while he did speak with the attorney for a matter of minutes, that is all it was, and . . . it did not give the defendant an opportunity to fully discuss his case, have his questions answered with regard to the weaknesses of the [S]tate's case, with regard to him taking the stand ultimately at trial or not taking the stand.
Did the attorney ever speak with the defendant aside from the three meetings with the co-defendant and the court interpreter? Was there another time? Did he go down with an investigator some other time? The defendant says he did not. The defendant says, look, I spoke with the attorney three times before court with the use of the co-defendant. During court there was an interpreter there. Only spoke for a matter of minutes. Certainly, Judge, that does not rise to the level of effectiveness of counsel.
On appeal, defendant argues the PCR court "failed to address this issue." Therefore, defendant contends this PCR claim must be remanded for "findings of fact and conclusions of law" in accordance with R. 3:22-11. Our review of the record confirms that the PCR court did not make specific findings regarding this issue, and the State does not object to a remand so that the PCR court can state its findings of fact and conclusions of law "regarding the adequacy of defense counsel's contacts with defendant."
If the PCR court determines defendant has presented a prima facie case of ineffective assistance of counsel, then defendant is entitled to "an evidentiary hearing and a determination of the merits of [his] claim." State v. Preciose, 129 N.J. 451, 464 (1992). In determining whether an evidentiary hearing is needed to resolve defendant's ineffective assistance of counsel claim, the PCR court must "ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed in the light most favorable to defendant." State v. Marshall, 148 N.J. 89, 158 (internal quotation omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). The matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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