On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-1084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant Diego Vallejo appeals from his conviction following a trial by jury, on charges of (1) first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one); (2) second-degree robbery, N.J.S.A. 2C:15-1 (count two); (3) and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count four). Sitting as the trier of fact, the judge found defendant guilty of simple assault, N.J.S.A. 2C:12-1(a), a disorderly persons offense, after the State amended the aggravated assault charge in count three to simple assault.
On June 21, 2006, the judge sentenced defendant to fifteen years imprisonment on the kidnapping count, subject to the No Early Release Act, five years on the robbery count, three years on the terroristic threats count, and six months on the simple assault, all concurrent to each other. Appropriate fines and penalties were imposed.
On appeal, defendant presents the following arguments:
I. THE VERDICT ON COUNT ONE (KIDNAPPING) WAS AGAINST THE WEIGHT OF THE EVIDENCE.
II. THE VERDICT ON COUNT TWO (ROBBERY) WAS AGAINST THE WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO ADEQUATELY INSTRUCT THE JURY TO DISREGARD EVIDENCE OF PRIOR BAD ACTS.
IV. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE VICTIM'S RECANTATION.
V. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial counsel failed to interview and call witnesses who had information that would have significantly helped defendant.
B. Trial counsel failed to prepare for trial, based on an unreasonable reliance on defendant's promises that the victim would not appear.
C. Trial counsel was ineffective for failing to object to improper questioning that solicited improper testimony regarding a domestic violence final restraining order.
We disagree with the arguments defendant presents in Points I through IV, preserve the issue defendant raises in Point V for post-conviction review, and affirm.
At the time of the events that were the subject of this trial, defendant and Miryam Vera*fn1 were involved in a romantic relationship and were living together at defendant's parent's home in North Brunswick. Defendant and Vera were also first cousins, and Vera's immediate family strongly disapproved of her relationship with defendant.
On May 20, 2005, Vera left work at approximately 11:30 p.m. She wanted to surprise defendant, so she went to his place of employment to pick him up. When defendant was not there, Vera became upset. Vera drove around for an hour, contemplating whether to end their relationship. Defendant eventually called Vera and told her he was home, after which Vera drove to the house. She arrived at approximately 12:30 a.m., went straight to their bedroom, and the two began to argue.
Vera did not initially make any attempts to leave the room after defendant locked the door; however, when she eventually attempted to leave, defendant physically prevented her from doing so. Vera testified that defendant grabbed her and shoved her on the bed, hit her on the back of the head and in between her legs, and threatened that he would cut her face if she left him. At one point, Vera had to use the bathroom, but defendant would not let her leave the room, so Vera was forced to urinate in a bucket. She testified that she was crying the entire time and that although defendant's parents heard her screaming, all they did was come to the bedroom door to instruct her to calm down.
Even though she desperately wanted to leave, Vera instead went to sleep because she "figured [she would] just let things calm down" and maybe she would be able to leave the next day. Vera slept on the bed and defendant slept on the floor. When Vera awoke at approximately 1:30 p.m., she tried to leave the room, but defendant again prevented her from doing so by blocking the door. When she started to pack her belongings, defendant kept unpacking them. She also testified that defendant then pushed her against the closet, yanked her arm, and screamed at her.
Defendant's father heard the screaming and repeatedly asked his son to open the door. When defendant finally opened the door, Vera ran across the hallway to defendant's parents' room and called her mother, Rosario Juarez, for help. Vera testified that her mother knew something was wrong because Vera and defendant had had "incidents before."
Juarez testified that at approximately 2:30 p.m. she arrived at the home. Juarez immediately went upstairs to the bedroom and repeatedly asked defendant to open the door. When defendant refused to let Vera out, Juarez threatened to call the police if defendant did not open the door. Because defendant did not comply, Juarez went outside and called 9-1-1.
At this point during the testimony, the State played the 9-1-1 tape, and Juarez verified that it was her voice on the tape. The 9-1-1 tape included the following exchange between Juarez and the dispatcher:
Dispatcher: Has anything like this happened before, or no?
Caller: Oh . . . many times, and she's the one always taking that sh*t about him [sic]. I don't know why. She's thirty-two years old and he's only twenty-five.
The State then moved to admit Juarez's testimony of the phone conversation between Juarez and Vera as an excited utterance, pursuant to N.J.R.E. 803(c)(2). The court admitted the conversation for the limited purpose of indicating that defendant was hitting Vera.
Shortly thereafter, according to Vera's testimony, defendant "yanked" Vera's purse from her hand and ran out of the bedroom with it. Vera then went downstairs to her mother and North Brunswick police officer Paul Braconi who had since arrived. She explained to Braconi that defendant had run away with her purse. The officer questioned defendant, who denied taking it. Eventually, defendant's grandmother found the purse in the backyard and returned it to Vera.
Braconi testified that in his presence defendant grabbed Vera and told her "she could not leave." Braconi explained that later Vera provided police with a formal statement and police took pictures of her bruises. The bedroom, according to Braconi, was in a state of disarray: items were knocked over, there was a lap top computer on the floor, a "mattress-type thing tossed off to the side," and a bucket. Braconi observed abrasions on Vera's arms, which he believed to be caused by defendant.
On cross-examination, defense counsel asked Braconi, "was [Juarez] encouraging you to arrest her nephew?" Braconi responded, "she was claiming that he had beaten her up in the past and things of that nature."
During Vera's testimony, there were two occasions when she referenced a prior alleged incident of violence that the court had previously excluded in a hearing outside the jury's presence. The first time, Vera stated during direct examination, "Okay, I got confused when you said May. I thought it was the incident in East Brunswick. All right, this one is the one that happened in New Brunswick." The second time was during Vera's description of her telephone call to her mother, when Vera testified her mother knew "something was wrong because we've had incidents before." At that point, the assistant prosecutor interrupted her and stated, "Okay, stop right there." Later on, however, the State asked Vera, "and as a result of this did you get a restraining order against defendant?" Vera responded, "yes, and it was finalized." At the time these statements were made, defense counsel did not object.
After the State rested, defendant moved for a judgment of acquittal on the kidnapping charge, arguing that the State had not met its burden of proof. The court denied the motion.
During the charge conference, the judge acknowledged the need for a curative instruction concerning the testimony about the prior alleged incidents, and said that he would give a curative instruction the next day. Neither side proposed any language for that instruction. During the jury charge, the judge issued a curative instruction directing the jury not to consider any testimony that had described events occurring before or after the day in question. On December 14, 2005, the jury returned the verdict we have described.
On December 22, 2005, defendant moved for a new trial, arguing that the guilty verdict on the kidnapping charge was against the weight of the evidence. He based that motion on evidence Vera provided after the trial. See R. 3:20-2. Specifically, on December 30, 2005, Vera went to defense counsel's office and provided a written statement that she had not been "truthful" at trial.
On May 25-26, 2006, the trial judge conducted a hearing on defendant's motion for a new trial. During that hearing, Vera recanted her trial testimony, stating under oath that she had lied to the jury because she was angry at defendant. Specifically, Vera testified that (1) defendant did not hit her or kidnap her during the incident at issue; (2) she was still in a relationship with defendant during trial and the present motion hearing; and 3) the bruising that she sustained from the alleged incident was exaggerated because she was anemic and her skin bruised easily.
At the conclusion of the testimony, defendant argued that Vera's testimony during trial was not credible and that a new trial was ...