August 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE TURCIO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-02-0221.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Lintner and Graves.
Defendant Jose Turcio appeals from an order entered on April 10, 2006, denying his petition for post-conviction relief (PCR). We affirm.
On September 19, 2000, a jury convicted defendant of the felony murder of Peter Russo, N.J.S.A. 2C:11-3(a)(3); the attempted murder of John Bodnar, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1);*fn1 first-degree armed robbery of Bodnar's Liquor Store, N.J.S.A. 2C:15-1; and second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a). At sentencing on June 22, 2001, the trial judge stated:
In the final analysis this defendant participated in a calculated armed robbery which was carried out in a cruel and violent manner. The crime resulted in the death of an innocent young man, serious harm of a psychological nature to another victim and has obviously also caused permanent damage to the lives and the families of the victims. Despite the overwhelming evidence of his guilt this defendant has maintained his innocence even today through an alibi that the jury has clearly rejected.
Following appropriate mergers, defendant was sentenced to life imprisonment subject to a thirty-year period of parole ineligibility on the murder conviction. On the attempted murder conviction the court imposed a consecutive fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43- 7.2.
On appeal, defendant advances the following argument:
THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE THE DEFENDANT'S TRIAL ATTORNEY COMMITTED SERIOUS ERRORS BY FAILING TO PRESENT EVIDENCE THAT THE LINE UP IDENTIFICATION WAS TAINTED AND UNRELIABLE AND BY FAILING TO PRESENT SEVERAL ALIBI WITNESSES.
After considering the record and briefs in light of the applicable law, we are satisfied defendant's arguments do not warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Melvin L. Gelade in his oral decision on March 29, 2006, with only the following comments.
On defendant's direct appeal, we summarized the facts of the case as follows:
On February 14, 1998, at approximately 9:15 p.m., defendant and an unidentified person entered Bodnar's [L]iquor [S]tore in New Brunswick armed with handguns, demanding money. Defendant, the smaller of the two, carried a silver revolver while the unidentified perpetrator had a black automatic. The owner, John Bodnar, and employees Charles Mack, Joseph Maselli, and Peter Russo, were working at the store that evening. Also present was Bodnar's friend, Nick Steiner. Defendant approached Steiner and either struck him on the head or pushed him off the chair. Bodnar heard the commotion from his office and saw someone with a gun. He called 911 and retrieved his gun from his desk, at which time defendant partially entered the office and pointed his gun at Bodnar. Bodnar's gun jammed and defendant began firing, hitting Bodnar's computer. Bodnar unjammed his gun and returned fire. As defendant was backing out of Bodnar's office, Mack heard a couple more gunshots and saw Russo fall to the floor. Russo ultimately died from his gunshot wounds.
After the police arrived, Mack, Maselli, and Bodnar met with a composite artist. Mack and Maselli provided information concerning the man with the silver revolver while Bodnar supplied information about the other perpetrator. Bodnar, whose attention was fixed upon the intruder's gun, only had a split second to see defendant's face. He was unable to identify defendant but described the person with the black automatic. Later, however, Bodnar was unable to identify the other perpetrator.
On December 8, 1998, Detective John Selesky of the New Brunswick Police Department presented Maselli with a photographic array. Maselli was eighty-percent certain that defendant was the person with the silver revolver. Later that month both Maselli and Mack viewed a lineup separately and identified defendant as the man with the silver revolver. They also identified defendant at trial.
Jose Mena, called as a witness by defendant, testified that he drove the getaway car but was unaware that a crime was in progress. According to Mena, defendant was not one of the two men in the car that he drove to Bodnar's [L]iquor [S]tore. He claimed that he did not know defendant at the time but did drive a man named Jose who he knew from a construction job, had met socially, and lived in Somerset. Mena did not know nor could he identify the second man. On cross-examination Mena acknowledged that he lived at 113 Howard Street in New Brunswick, approximately three blocks from Bodnar's [L]iquor [S]tore. He denied knowing that defendant's girlfriend also lived at 113 Howard Street.
Braceldina Delcid, defendant's sister, testified that on the night of the robbery defendant attended a Saint Valentine's Day party in Westbury, New York, with approximately ten to twelve other people. According to Delcid, defendant left the party between 9:30 and 10:00 p.m. with Julio Ramirez. Julio Ramirez also testified that he was with defendant at the Westbury party and they left the party together at 10:00 p.m. and returned home.
In rebuttal, the State presented testimony from Detective Selesky, who interviewed defendant on November 24, 1998, at which time defendant stated that his girlfriend lived at 113 Howard Street and that he knew Jose Mena with whom he worked at J.C. Construction. Selesky also testified that defendant was able to identify a photograph of Mena as a person with whom he worked.
[State v. Turcio, No. A-0370-01 (App. Div. Sept. 30, 2003) (slip op. at 3-5), certif. denied, 178 N.J. 454 (2004).]
Following an evidentiary hearing on February 21, 22, and March 24, 2006, the court denied defendant's PCR petition. In its oral decision on March 29, 2006, the court concluded defendant's trial attorney, William J. McDonnell, had functioned effectively and professionally, and there was no evidence to support defendant's claim that he was deprived of the effective assistance of counsel. Moreover, the court made detailed findings, which included the following:
Mr. Barker testified at the hearing in this matter on February 21st and at that time he talked about what allegedly occurred during the lineup, and what he said was . . . the people in the lineup were present in court at a bail motion. And the [c]court ordered a physical lineup. The persons who were asked to ID were behind glass and he and Norma Ayala, the investigator, were present and that . . . witnesses were unable to positively identify Turcio and that Barker would be a possible witness and decided to pool the case out.
There was nothing that this [c]court could find in the record which would be the basis for holding that counsel was ineffective because of Mr. Barker's statement that the people at the lineup were not a hundred percent sure. That was brought up at the trial. The jury had an opportunity to evaluate the credibility of those witnesses. There's nothing that would have changed the outcome of this case with respect to the lineup.
The next . . . issue . . . [which] is the main focus of this case, is the issue of Mr. McDonnell's performance as an attorney because of his alleged inability to comport himself as effective counsel due to a problem with alcoholism, and this was the main thrust of this case, and this [c]court had the opportunity to hear witnesses in this case assail . . . Mr. McDonnell's character in general. . . .
. . . The record, however, shows a different story. Mr. McDonnell continued to receive cases after that 2001 date as a per diem attorney. . . .
Suffice it to be said, that Miss Ayala's recollection that Mr. McDonnell was not attentive to the case and that he rarely met with her, that she had little contact with Mr. McDonnell, is not credible at all. I find that Miss Ayala has an extremely bad recollection of the events of this case. I do not credit her testimony in any way that Mr. McDonnell failed to meet with her or the defendant in preparation of this case. I find that he did so. I credit the testimony of Mr. McDonnell in that regard.
Mr. McDonnell comported himself on the witness stand as a person who understood the questions, who was anxious to forthrightly answer those questions, who was not impaired in any way, who had a clear recollection of the case and the specifics of the case, that he answered each question respectfully and directly. He tried to hide nothing. His demeanor was that of a truthful witness. . . .
Neither Mr. Barker nor Miss Ayala gave any credible testimony upon which this [c]court could find that Mr. McDonnell was impaired either during the preparation or trial of this matter. Indeed I now come to Mr. Casey and Judge DeVesa.
I credit both Judge DeVesa's testimony in that regard and Mr. Casey's testimony, and I find, as a matter of fact, that Mr. McDonnell prepared this case as any competent, functioning, experienced criminal attorney would do and that he was never either impaired, under the influence of alcohol. He never exhibited any signs of being under the influence of alcohol either during the preparation or trial of this case.
The court also evaluated the testimony of Alfredo Ramirez, Melvin Delcid, and Jose Andino, the three potential alibi witnesses.
I credit Mr. McDonnell's testimony that these witnesses who, frankly, I'm not sure would have added anything, had they been called, to the testimony of the two who were called. From what I heard from these witnesses in this courtroom, their pat testimony about specific times of entry and leaving, I do not believe that they would have, if called, given a different version. And why would Mr. McDonnell have prepared . . . out-of-state subpoenas to subpoena these witnesses if he didn't intend to call them? [There] would have been nothing more for him to do except to have those subpoenas enforced, yet these witnesses denied that they received subpoenas. I think these witnesses testified in a way to corroborate what Mr. McDonnell said, that they were somewhat apprehensive and fearful and that they didn't show up and he put on the witness stand those who did show up and that they testified in accordance with what their recollection was of the party.
Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L.Ed. 2d at 693. "First, the defendant must show that the counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must [demonstrate] that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is a reasonable probability 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; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).
As stated by the Strickland Court, "[j]udicial scrutiny of counsel's performance must be highly deferential" and "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The court will recognize a "strong presumption" that counsel provided "reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
In the present matter, the court concluded defendant failed to establish both prongs of the Strickland test, and the record fully supports those findings. Our review of the record confirms there was no showing that defendant's attorney was deficient for not challenging the pretrial lineup on December 23, 1998. However, even if defendant's attorney erred, we are satisfied there was no prejudice to defendant's defense. As the trial judge noted in denying defendant's motion to acquit, two of the liquor store employees gave descriptions of the men in question which were "consistent, not only with each other but consistent with the description of the defendant in this case"; "they were able to describe this man with a silver revolver to an artist who did a composite photo"; one of the employees identified defendant's photograph from a photo array on December 8, 1998, as someone who looked very similar to "the man with the silver gun"; and both witnesses made positive in-court identifications of defendant, which are not challenged by defendant. Thus, even if we were to assume the lineup identification was invalid, there has been no showing of prejudice because the State presented other reliable and compelling identification evidence to prove defendant was "the man with the silver gun" during the shooting and robbery at Bodnar's Liquor Store.
Similarly, for the reasons stated by Judge Gelade, we agree the outcome of defendant's trial would not have been different if the three alibi witnesses, who testified at the PCR hearing, had testified at defendant's trial. We therefore affirm substantially for the reasons stated by Judge Gelade in his comprehensive oral decision on March 29, 2006.