June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELO BURGOS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 97-12-2194.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 11, 2008
Before Judges Collester and C.L. Miniman.
Defendant Angelo Burgos appeals from the denial of his application for post-conviction relief (PCR) in connection with his 1999 conviction on charges of knowing or purposeful murder contrary to N.J.S.A. 2C:11-3(a)(1), -3(a)(2); felony murder contrary to N.J.S.A. 2C:11-3(a)(3); six counts of armed robbery contrary to N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a); and possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5(b). Defendant was sentenced to life in prison with a thirty-year parole disqualifier on the murder conviction, six twenty-year terms on the armed robbery convictions concurrent to each other and consecutive to the life term and a five-year concurrent term on the conviction for gun possession without a permit. The felony-murder and unlawful-gun-possession convictions were merged for sentencing purposes. We affirmed the convictions and sentences on direct appeal and three months later the Supreme Court denied defendant's petition for certification. State v. Burgos, No. A-3047-99 (App. Div. Feb. 21, 2002), certif. denied, 172 N.J. 359 (2002).
We recited the factual evidence supporting the convictions on direct appeal:
The State presented compelling evidence that in the early morning hours of April 29, 1997, defendant shot and killed Robert Price during a robbery in a pool room in Lodi. Price, a pool room patron, resisted the perpetrator's effort to remove gold chains from his neck. A scuffle ensued during which the perpetrator drew a firearm. As Price attempted to gain control of the gun, a shot was fired. When the gun jammed, the perpetrator slammed it on the table, re-cocked it and shot Price numerous times. After Price fell to the ground, the perpetrator shot him in the head and then fled the pool hall.
Although the perpetrator was hooded, the patrons were able to give a general description of him. That information was relayed by the Lodi Police to all nearby law enforcement agencies. After Sergeant Walsh of the Little Ferry Police Department received the transmission, he observed a light-skinned black male in a Dodge Stratus. He followed the vehicle, but after determining that the vehicle had not been stolen, he suspended his pursuit.
However, shortly thereafter, Officer John Harper of the Fort Lee Police Department observed a vehicle with a black male generally fitting the description given by the Lodi Police. When he activated his overhead lights, the vehicle came to a stop. However, it suddenly took off and proceeded through a toll booth at the George Washington Bridge toward New York City. Officer Harper pursued the vehicle, but lost sight of it in the vicinity of 178th Street and Amsterdam Avenue. Prior to the pursuit, Officer Harper "ran" the license plate of the vehicle, number PD505L, and determined that it was the same vehicle previously observed by Sergeant Walsh.
Sometime that same morning, defendant's sister and brother-in-law received a telephone call from defendant. Defendant requested that his sister report to the police that her vehicle had been stolen. The sister in fact had loaned the vehicle to defendant a few days earlier. She complied and reported the vehicle stolen. Further, defendant called his girlfriend in Syracuse, New York, advising her of his intention to visit her. During a three-way call with defendant, his girlfriend and mother, defendant asked his mother whether anyone had come looking for him. Later in the day, defendant again called his girlfriend and asked her to obtain a bus ticket for him for a return trip from Syracuse to New York City.
At approximately 6 a.m. the same morning, the New York Police issued a parking ticket to a car with a New Jersey license plate number PD505L parked on the corner of Broadway and 162nd Street. When defendant returned from Syracuse to Passaic County, he was arrested for the murder of Price and the robberies.
Over defendant's objection, Assistant Prosecutor David Pine was permitted to testify that defendant had been indicted in 1995 for committing armed robbery and weapons possession offenses. Robert Price, the murder victim, was also the victim of that armed robbery. The indictment alleged that $35,000 had been stolen from Price.
The trial court permitted the testimony as "other crimes evidence" under N.J.R.E. 404(b), relevant to defendant's motive to kill Price. [Id. at 3-5.]
We concluded without discussion that there was no merit to five of the points raised on appeal and, after discussion, concluded that there was no merit to defendant's claims that "[t]he trial judge erred in admitting evidence of the pending Passaic County robbery charge as there was never any proof offered to connect this charge to the pending homicide charge" and "[t]he trial judge erred in refusing to instruct the jury that they could not consider the pending indictment as evidence until they had determined that the defendant was the person who committed the homicide." Id. at 2-3. Essentially, defendant argued that other-crimes evidence should have been excluded absent clear and convincing evidence that he had committed the robbery. Id. at 5. We rejected this claim because the evidence of defendant's earlier indictment for robbing Price, based on Price's identification of defendant, had been admitted to prove that defendant had a motive to kill Price in order to avoid conviction on the robbery indictment. Id. at 5-6. We also found that the limiting instruction given by the judge respecting this evidence was adequate in the circumstances. Id. at 6-9.
In his April 13, 2003, verified pro se petition for PCR, defendant contended that he "was denied [his] sixth amendment right to effective assistance of counsel due to lack of preparation at a trial." After counsel was obtained, the petition was refiled and defendant alleged that he had been acquitted on the earlier robbery indictment, which would have precluded admission in this matter of the evidence of the indictment, entitling defendant to a new trial. Defendant also asserted that trial counsel was ineffective because counsel failed to obtain a transcript of the judge's pretrial ruling concerning the prior robbery indictment, which diverged from the subsequent order, and failed to object to the introduction of plea negotiations.
Defendant's PCR application was argued on March 22, 2005. With respect to the acquittal on the prior robbery indictment, the judge observed that our opinion on direct appeal covered part of defendant's argument and concluded that the balance did not require a new trial. He explained:
The circumstances of what the defendant is arguing first of all part of which was covered by the Appellate Division; secondly, there's nothing here to indicate that anything would be different had the case been tried now. I don't think that the acquittal of the 1995 robbery charge is, very frankly, has any merit at all with respect to the position the defendant is taking. Again, raising what was argued by the State that trying to utilize the fact that the acquittal was had and now we can't call -- or the State can't call the victim because the victim is gone.
Interesting argument, however, one that in my opinion does not have merit. In addition to the fact, there's no showing in my opinion that counsel below functioned as an ineffective assistance of counsel.
There's nothing in this case at all, other than what has already been raised by the Appellate Division and dealt with by them that would mandate that I should order a new trial.
As to ineffective assistance of counsel, the PCR judge concluded that nothing before him mandated a plenary hearing because defendant had not made a prima facie showing. He stated:
There's no showing at all that anything that counsel did below would have affected the outcome of this trial, nor is there any showing in my opinion there's ineffective assistance by virtue of him performing at a level below the standard of a reasonably prudent attorney.
Thus, the PCR judge denied all relief and this appeal followed.
Defendant raises the following issues on appeal:
POINT I - THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
A. EXCLUSION OF TESTIMONY REGARDING THE PASSAIC COUNTY ROBBERY CHARGE IN WHICH PRICE WAS THE VICTIM, FOR WHICH CHARGE THE DEFENDANT WAS ULTIMATELY ACQUITTED.
B. TRIAL COUNSEL DID NOT CONTEST THE DISPARITY IN SCOPE OF [THE] JUDGE['S] ORAL DECISION ON THE ADMISSIBILITY OF EVIDENCE ADDUCED AT THE MIRANDA HEARING FROM THE SCOPE OF THE EVIDENCE DEEMED ADMISSIBLE SET OUT IN HIS WRITTEN ORDER OF NOVEMBER 11, 1998.
POINT II - THE MATTER MUST BE REMANDED FOR CONSIDERATION OF DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ON THE ADVICE OF DEFENDANT'S MAXIMUM SENTENCING EXPOSURE IF CONVICTED.
Specifically, defendant contends that the acquittal of the prior robbery charge would have rendered the evidence of the indictment "facially inadmissible" and that the absence of the evidence "would have a reasonable probability of affecting the outcome of the verdict in the homicide." He further argues that trial counsel was ineffective in failing to challenge the disparity between the ruling and the order and the judge's reasoning on the issue. Finally, he argues that trial counsel was ineffective in failing to advise him of his maximum sentencing exposure when he considered, and then rejected, the plea offer of thirty years without parole. He also contends that the record does not establish that he was advised of the possibility of consecutive sentences and that his retained PCR counsel would not raise this issue in the petition for relief.
The claim of ineffective assistance of counsel with respect to the plea offer is raised for the first time on appeal and is predicated on a May 22, 2006, certification from defendant, which was prepared subsequent to the filing of the appeal.
It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]
The issue respecting the plea offer should have been presented to the PCR judge. It does not meet the exceptions to the Neider rule. We especially will not consider it because it is based on evidence that was not before the PCR judge and was included in the record on appeal without our leave to supplement the record. State v. Harvey, 151 N.J. 117, 201-02 (1997); R. 2:5-4(a); R. 2:5-5(b). Furthermore, it is barred by R. 3:22-12(a) as no excusable neglect to raise the issue before May 22, 2006, has been shown and more than five years have elapsed since the December 17, 1999, judgment of conviction.
As to defendant's other arguments, the fact that he was acquitted in 2002 of robbing Price in 1995 is irrelevant to the issue of whether the pending indictment for that robbery was the motive for Price's murder in 1997. It was defendant's state of mind at the time of the murder that was at issue, not his actual guilt or innocence in regard to the 1995 robbery.*fn1 Furthermore, we have already addressed the admissibility of the indictment on defendant's direct appeal. Burgos, supra, slip op. at 5-6. Even in the face of an acquittal, the indictment would remain admissible to prove motive for the 1997 murder.
As to the divergence between the pretrial ruling and the subsequent order, we conclude that defendant has not proven that his counsel was ineffective. In Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), the U.S. Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).
"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
Here, it is clear from the transcript of the pretrial hearing that the ruling addressed only the general admissibility of the 1995 robbery indictment and not the particulars of every facet of the indictment. Trial counsel cross-examined the State's witness on the indictment and secured testimony beneficial to defendant. Additionally, we concluded on direct appeal that the particulars of the indictment were properly placed into evidence. State v. Burgos, supra, slip op. at 6. We are satisfied that defendant has not met his burden of proof under either of Strickland's two prongs. Counsel's alleged failure to object to the particulars of the order was not a serious error nor was defendant deprived of a fair trial.