January 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDUARDO TAPIA, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROGELIO TAPIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2491.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2009
Before Judges Reisner and Alvarez.
In these two appeals, which we have consolidated for purposes of this opinion, defendants Eduardo Tapia and Rogelio Tapia appeal from two January 26, 2007 orders denying their petitions for post-conviction relief (PCR). We affirm.
Both defendants were convicted by a jury, based on the same incident involving the kidnapping of Juan Cordero. According to the State's evidence, Cordero had an affair with Eduardo Tapia's live-in girlfriend, Leticia Hernandez, as a result of which she became pregnant and had an abortion. Thereafter, defendants' sister lured Cordero to a parking lot, where the two defendants and several co-defendants forced Cordero into an SUV at knife-point, tied him up, brought him to Eduardo's house and threatened him. Several independent witnesses observed the kidnapping and called 9-1-1. The police traced the registration of a car defendants had left at the kidnapping scene, and discovered Eduardo's address. Cordero was saved from further harm when the police arrived at Eduardo's house and freed him.
Eduardo Tapia was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1, and possession of a prohibited weapon, N.J.S.A. 2C:39-3e, and was sentenced to an aggregate sixteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Rogelio Tapia was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1, and related weapons offenses, and received an aggregate sentence of fifteen years subject to NERA. Both men were sentenced to serve a five-year period of parole supervision following their release from prison. We affirmed both convictions on appeal. State v. Tapia, Docket Nos. A-1021-03 and A-2911-03 (App. Div. June 9, 2005), certif. denied, 185 N.J. 295 (2005). Both defendants filed PCR petitions.
In an oral opinion placed on the record on January 26, 2007, Judge Chaiet rejected defendants' PCR claims that trial counsel was ineffective for failing to object to comments by the prosecutor in summation. The judge found the remarks were not misconduct but fair comment on the evidence. Rejecting defendants' further contentions, the judge also found that the prosecutor did not misstate the law of conspiracy and that in any event the trial court's extensive and correct jury charge would have cured any misstatement. Judge Chaiet also concluded that trial counsel was not ineffective in failing to call a co-defendant as a witness, since her potential testimony would have been cumulative and suspect.
Judge Chaiet rejected defendants' claims that the sentences were excessive, noting that the range for kidnapping was fifteen to thirty years, and that he had sentenced Eduardo to one year above the minimum sentence and had given Rogelio the minimum possible sentence. He found no merit in defendants' argument that the five-year periods of parole supervision should be combined with the prison sentences for purposes of determining whether the sentences violated the principles set forth in State v. Natale, 184 N.J. 458 (2005).
On appeal, defendant Eduardo Tapia raises the following point for our consideration:
POINT I: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
In a pro se supplemental brief, he also raises the following arguments:
POINT I: APPELLANT MOVES BEFORE THIS HONORABLE COURT FOR A LIMITED REMAND BACK TO THE TRIAL COURT FOR FAILURE TO MAKE FINDINGS AS TO THE VOLUNTARINESS OF THE TAPIA BROTHERS STATEMENTS WHEN IT WAS SHOWN, INFRA, THAT THE STATEMENTS WERE PREPARED BY AN UNCERTIFIED, INCOMPETENT INTERPRETER; AND DEFENSE ATTORNEYS NEVER SO MUCH AS PROBED THAT AREA, WHICH IS BLATANT INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING REVERSAL OF THE CONVICTIONS AND DISMISSAL OF ALL CHARGES.
POINT II: THE APPELLANT, EDUARDO TAPIA, WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHICH RESULTED IN HIS CONVICTION AND SEVERE SENTENCE WHEN TRIAL COUNSEL FAILED TO CALL ANY WITNESSES, FAILED TO CHALLENGE THE ORAL AND WRITTEN STATEMENTS BY PETITIONER, ALL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE STATE AND FEDERAL CONSTITUTIONS, REQUIRING THE REVERSAL OF THE CONVICTION AND AN ORDER GRANTING DEFENDANT A NEW TRIAL.
The arguments raised in defendant's pro se brief were not presented to the PCR court, and we decline to address them for the first time on this appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973). We conclude that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
On this appeal, Eduardo contends, as he did before Judge Chaiet, that prosecutorial misconduct, to which his attorney failed to object, warrants a new trial. We agree with the State that the underlying argument concerning the prosecutor's comments could have been raised on direct appeal and therefore cannot be raised in a PCR petition in the guise of ineffective assistance of counsel. See R. 3:22-4; State v. Cerbo, 78 N.J. 595, 605 (1979). However, we also conclude that there was no misconduct, because the prosecutor's remarks were fair comment on the evidence. Hence, trial counsel was not ineffective for failing to object. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
We agree with Judge Chaiet that the prosecutor's summation provided a simplified explanation for the jury of the difference between conspiracy and accomplice liability. The prosecutor pointed out to the jury that conspiracy required a plan, whereas under "[t]he accomplice liability theory, you don't need a plan, you just have to help." Defendant admits that in charging the jury, the trial judge gave them a complete and correct instruction and told them that they must accept the law as he stated it in his charge. We find no basis to conclude that failure to object to the prosecutor's comment was ineffective assistance or, in light of the court's correct jury instructions, that the comment had the capacity to prejudicially affect the outcome of the trial. See State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005).
Defendant Rogelio Tapia presents the following appellate points for our consideration:
POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant Was Denied Effective Assistance Of Counsel When His Trial Attorney Failed To Object To Prejudicial And Improper Remarks Made By The Prosecutor During His Summation And When Appellate Counsel Failed To Raise This Issue On Direct Appeal.
B. Defendant Was Denied Effective Assistance Of Counsel When His Trial Attorney Failed To Object To Misstatements Of Law To The Jury During His Summation.
C. Defendant Was Denied Effective Assistance Of Counsel When His Trial Attorney Failed To Call Julianna Cohetero As A Witness. POINTS II: THE FIVE-YEAR PAROLE SUPERVISION EXTENDED DEFENDANT'S SENTENCE FROM 15 YEARS TO AN OVERALL 20 YEARS, IN VIOLATION OF APPRENDI, BLAKELY, NATALE, FRANKLIN AND ABDULLAH. WHEREFORE DEFENDANT SHOULD BE RE-SENTENCED TO 10 YEARS WITH THE FIVE-YEAR PAROLE SUPERVISION TO ARRIVE AT THE TERM OF 15 YEARS, IN THE ALTERNATIVE OF THE NERA SENTENCING BEING UPHELD.
POINTS III: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AND ON THE APPEAL WHEREFORE POST-CONVICTION RELIEF MUST BE GRANTED.
POINTS IV: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE CROSS-EXAMINATION OF HIS MAIN ACCUSER BY THE STATE'S FAILURE TO REVEAL HIS TRUE IDENTITY AND PROVIDE HIS CRIMINAL RECORD FOR IMPEACHMENT PURPOSES, WHEREFORE POST-CONVICTION RELIEF MUST BE GRANTED.
These are largely duplicative of the contentions advanced by Eduardo and, to the extent not already addressed in this opinion, they are without sufficient merit to warrant discussion in a written opinion, beyond the following comments. R. 2:11-3(e)(2). We agree with Judge Chaiet that counsel's failure to investigate the victim's national origin was not ineffective assistance.*fn1 We also agree that the five-year period of parole supervision is not combined with the sentence of imprisonment for purposes of determining whether the sentence satisfies State v. Natale. Further, since Natale has only pipeline retroactivity, it would not apply to this PCR petition in any event. Natale, supra, 184 N.J. at 494.
We affirm as to both defendants.