Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

State v. Marquez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANGELO MARQUEZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-05-1619.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2009

Before Judges Carchman and Sabatino.

Following a jury trial, defendant Angelo Marquez was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4a.

On September 28, 2001, Judge Lario sentenced defendant to an aggregate term of twenty-four years with twelve years of parole ineligibility to be served at the Adult Diagnostic and Treatment Center at Avenel, together with applicable fines and penalties. Defendant was also sentenced to lifetime supervision, N.J.S.A. 2C:43-6.4, and was required to register as a sex offender, N.J.S.A. 2C:7-1 ("Megan's Law").

We affirmed defendant's convictions, and the Supreme Court denied defendant's petition for certification. See State v. Marquez, No. A-4078-01T4 (App. Div. Feb. 4, 2004) (slip. op. at 8), certif. denied, 180 N.J. 357 (2004). On June 29, 2005 defendant filed a motion for post-conviction relief (PCR). Following argument, the PCR was denied. This appeal followed. We restate the facts as we described them in our earlier opinion:

The convictions were premised upon the State's evidence from which the jury obviously found that defendant sexually molested M.O., the daughter of his girlfriend, from the time she was ten years old until she was sixteen. We need not recite all of the details. Suffice it to say that the evidence showed that M.O. first met defendant when she was nine years old after she, her sister and her mother moved into an apartment in Camden. Defendant lived in the apartment above theirs and was a friend of M.O.'s mother. He spent time with the family and sometimes took care of M.O., taking her to the movies and other events. The incidents of molestation began in July 1992 and occurred once or twice a month. They involved fondling and intercourse and occurred either in the apartments or at defendant's place of work, a jewelry store. They continued until M.O. ran away from home when she was sixteen.

Over the years, M.O.'s appearance and behavior deteriorated. As a result of her behavior, M.O. began attending the Alternative School, a school for children with behavioral problems. There she met Priscilla Sanchez, a student mentor, to whom she revealed in early 1997 that she was being abused. She, however, did not then disclose the details or the abuser because she was afraid Sanchez would tell her mother and her mother "would have got in trouble or something." Through Sanchez, however, M.O. met Reverend Yvonne Martinez, to whom, in April 1998, she fully revealed the sexual molestations by defendant. At Martinez's suggestion, M.O. then told her mother, who did not believe her. M.O. attempted suicide as a result of which she was in a hospital and then a crisis center. Thereafter, she stayed with Martinez for a while and unsuccessfully tried moving back with her mother. Her mother eventually took her to the police. She was then placed in several counseling facilities, encountered DYFS' involvement and, at the time of trial, was staying with the Sanchez family.

Throughout these events, M.O. spoke with many different people from DYFS, the Prosecutor's Office and the police. She acknowledged during the trial she may have told different versions of the abuses. She also admitted withholding details and lying to the police. Further, the specific details of the sexual abuses varied. However, her trial testimony that they occurred did not waiver. She was, moreover, able to fully describe a birth mark on defendant's upper thigh that could only be seen when defendant was wearing his underwear. In fact, defendant has such a birth mark.

Evidence supporting M.O.'s claims came from a pediatrician who has specialized in the field of child abuse for twenty years. After examining M.O., the doctor concluded that although he found no physical evidence to indicate sexual assault, the size of M.O.'s vaginal opening was consistent with having had intercourse with an adult male because it was larger than many children her age. He saw no significance in the lack of physical injury upon examination since most individuals who experience sexual contact do not actually suffer from any injuries associated with intercourse. But he related M.O.'s complaints of burning upon urination after molestation, and opined that they were consistent with disurea, an irritation caused to the tissues of the genitalia.

The jury also heard from a clinical child psychologist regarding the "Child Abuse Accommodation Syndrome" (Syndrome). She explained that there are five parts to the Syndrome - secrecy, helplessness, entrapment, accommodation, and recantation or retraction. The Syndrome explained much of M.O.'s behavior. The expert stressed, however, that the Syndrome was not a diagnostic tool and that not every abused child exhibits all five traits. Further, she correctly told the jury that the five traits should not be considered a checklist to determine whether sexual abuse occurred nor be used as indicators thereof. The Syndrome aids only in understanding a child's behavior following sexual abuse.

[State v. Marquez, supra, (slip op. at 2-5).]

In his direct appeal, defendant raised, among other issues, the following:

POINT II: THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL (NOT RAISED BELOW).

In affirming the conviction, we concluded:

As to point II, we have considered the prosecutor's comments - "he knows he's safe[,] [h]e's golden[,] [h]e can do it and he did" - in the context of the entire closing arguments. We are convinced these brief remarks were not so egregious that "[they] deprived [the] defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). Compare State v. Frost, 158 N.J. 76 (1999) (prosecutor's comment on police reports not in evidence, bolstering of officer's credibility by telling the jury "do you know the magnitude of the charges that could be brought against officers for such actions," and disparaging defendant's attorneys, constituted prosecutorial misconduct requiring reversal). See State v. Harris, 141 N.J. 525, 559 (1995); State v. Morais, 359 N.J. Super. 123, 130 (App. Div.), certif. denied, 177 N.J. 572 (2003) (citing State v. Papasavvas, 163 N.J. 565, 616, mod. on other grounds, 164 N.J. 553 (2000), and State v. Timmendquas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001)); State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom., State v. Pantoja, 169 N.J. 610 (2001).

Furthermore, counsel made no objection to the remarks, suggesting no evident prejudice was perceived at a time when there could have been a cure by the trial judge. State v. Timmendequas, supra, 161 N.J. at 576.

[State v. Marquez, supra, (slip op. at 6-7).]

At the PCR hearing, defendant again raised the issue of the prosecutor's summation:

But the issue I'm specifically pointing at is that his attorney, [], was ineffective in not challenging at the time the statements were made that they were, in fact, prosecutorial misconduct. And as a result of that, it had an adverse impact upon the way the case proceeded from that point. Because, since the objection wasn't made, it wasn't noted for the record, there wasn't an opportunity for the Court at that time to give a curative instruction or some type of limiting instruction to the jury which, when given, there's the strong possibility the jury may have rendered a different verdict than the one rendered here.

This particular error on behalf of the trial attorney just snowballed, so to speak, into the Appellate Division because of the fact since it wasn't raised at the trial level when the Appellate Division went to review it, they had to use the higher standard to review it.

After hearing argument on the PCR, the judge found:

In this case the defendant raised the issue of prosecutorial misconduct on appeal, although not in context of ineffective assistance of counsel. The Appellate Court noted that the prosecutor's remarks, quote, "he knows he's safe. He's golden. He can do it and he did," end quote, taken in the context of the entire closing were not so egregious to deprive the defendant of a fair trial. However, because counsel did not object to the remarks at trial, the Appellate Division used the plain error standard of review as opposed to lower standard of harmful error. Because the exact issue of ineffective assistance of counsel for not objecting to the prosecutor's closing remarks and requesting a curative instruction was not raised on direct appeal, defendant can raise this issue now in this PCR claim.

Prosecutors can forcefully present their case within the bounds of advocacy established by law. State v. Roman[, 382 N.J. Super. 44, 60 (App. Div. 2005), certif. granted, 188 N.J. 219, (2006), certif. dismissed, 189 N.J. 420 (2007)], quoting from State v. Acker[, 265 N.J. Super. 351 (App. Div.), certif. denied, 134 N.J. 485 (1993)].

As long as the prosecutor's comments are based on facts in the record, the remarks of comment, denunciation or appeal will not be grounds for reversal. For reversal, prosecutor's misconduct must deprive the defendant of a fair trial. Failure of a defense attorney to object suggests that counsel did no believe the remarks were prejudicial when they were made. The Appellate Court even noted that the closing remarks did not deprive defendant of a fair trial. This is from State v. Roman[, supra].

When viewing the facts in the light most favorable to the petitioner, as this Court must, petitioner has not presented a prima facie case of ineffective assistance of counsel in failing to object to a closing remark which, thus, he is not entitled to evidentiary hearing in this matter. The comment made by the Appellate Division in this case, quoting, "counsel made no objection to the remarks suggesting no evident prejudice was perceived at a time when there could have been a cure by the trial judge," end quote, does not mean the Appellate Court finds the prosecutor's remarks to be objectionable; nor does it suggest the trial court should have given curative instruction.

Further, I find that the second inquiry which is to be made whether there exists reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different has not been met. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In a case where there has been a complete denial of counsel, prejudice is presumed. However, in cases where there has been counsel, competent representation is to be assumed unless there's a showing otherwise.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the trial. State v. Sheika[, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001)]. Here the defendant alleges only that the remarks had been -- had the remarks been objected to at trial there would have been a curative instruction; presumably the trial result would have been different.

Defendant claims the prosecutor invaded the province of the jury, I think --however, I find that the State has provided sufficient evidence to support the prosecutor's closing remarks including testimony of the victim and medical experts. I don't think the defendant has shown that the outcome in any way would have been any different. Further, I don't find that the prosecutor's remarks overstepped the bounds. Therefore, the motion is denied.

Defendant now argues on appeal:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S IMPROPER REMARKS; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.*fn1

POINT I SECOND PETITION FOR POST CONVICTION RELIEF IS NUNC PRO TUNC. HOWEVER, APPELLANT ALLEGES FACTS SHOWING THAT THE DELAY BEYOND SAID TIME WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT.

POINT II APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL CONTRARY TO THE RIGHTS AFFORDED HIM BY THE NEW JERSEY AND THE UNITED STATES CONSTITUTION. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, AND P.C.R. COUNSEL IN THAT THEY DID NO INVESTIGATION, AND THEY DID NOT ADVANCE MANY OF THE APPELLANT'S MERITORIOUS CLAIMS TO THE COURT.

POINT III THE MISCONDUCT OF THE PROSECUTOR FROM OPENING STATEMENTS THROUGH OUT SUMMATION DEPRIVED THE APPELLANT OF A FAIR TRIAL BY IMPROPER BOLSTERING THE CREDIBILITY OF THE CHILD WITNESS, THE PROSECUTOR CLEARLY LYING IN HIS SUMMATION AS TO THE EVIDENCE NOT PLACED BEFORE THE JURY, HOWEVER, IS KNOWN TO THE PROSECUTOR.

We have carefully reviewed the record in this matter and conclude that defendant's arguments are without merit. R. 2:11- 3(e)(2). We add the following brief comments.

To dispel any doubts as to the import of our February 24, 2004 opinion on the direct appeal, where we said: "We are convinced these brief remarks were not so egregious that '[they] deprived [the] defendant of a fair trial,'" we found no error, plain or otherwise. State v. Marquez, supra, (slip. op. at 6). The failure of defense counsel to object did not impact on our finding, and revisiting the argument as to counsel's comments are unavailing.

We add the following comments regarding the supplemental brief filed by defendant. In his supplemental brief, defendant raises additional issues:

POINT I SECOND PETITION FOR POST CONVICTION RELIEF IS NUNC PRO TUNC. HOWEVER, APPELLANT ALLEGES FACTS SHOWING THAT THE DELAY BEYOND SAID TIME WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT.

POINT II APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL CONTRARY TO THE RIGHTS AFFORDED HIM BY THE NEW JERSEY AND THE UNITED STATES CONSTITUTION. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, AND P.C.R. COUNSEL IN THAT THEY DID NO INVESTIGATION, AND THEY DID NOT ADVANCE MANY OF THE APPELLANT'S MERITORIOUS CLAIMS TO THE COURT. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THAT TRIAL COUNSEL FAILED TO INVESTIGATE MATTERS OF FACT AND LAW. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN THAT APPELLATE COUNSEL FAILED TO FORWARD MANY OF THE PETITIONER'S MERITORIOUS CLAIMS. COUNSEL WAS EGREGIOUSLY INEFFECTIVE IN HIS OPENING STATEMENT. COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO CALL EXPERT WITNESS BECAUSE OF THE VAGARIES OF ABUSE INDICIA, HIS FAILURE TO CONTROL THE WITNESSES AND HIS INEFFECTIVE CROSS EXAMINATION OF THE STATE'S WITNESSES. APPELLATE COUNSEL, AND FORMER P.C.R. ATTORNEY FAILED TO FORWARD PETITIONER'S MERITORIOUS CLAIM. COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO CALL OR AT LEAST CONSULT WITH A MEDICAL EXPERT IN SEXUAL ABUSE OF CHILDREN, BECAUSE OF THE VAGARIES OF ABUSE INDICIA.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THAT TRIAL COUNSEL FAILED TO INVESTIGATE MATTERS OF FACT, LAW, AND THE RULES OF EVIDENCE. FAILED TO CALL CREDIBLE WITNESSES FROM THE COMMUNITY AS TO THE CHILD'S CHARACTER.

TRIAL COUNSEL FAILED TO INVESTIGATE MATTERS OF FACT AND LAW. TRIAL COUNSEL, APPELLATE COUNSEL, AND P.C.R. COUNSEL ALL FAILED TO FORWARD THE PETITIONER'S MERITORIOUS CLAIM THAT HE DID NOT RECEIVE A FAIR TRIAL BY AN IMPARTIAL JURY.

POINT III THE MISCONDUCT OF THE PROSECUTOR FROM OPENING STATEMENTS THROUGH OUT SUMMATION DEPRIVED THE APPELLANT OF A FAIR TRIAL BY IMPROPER BOLSTERING THE CREDIBILITY OF THE CHILD WITNESS, THE PROSECUTOR CLEARLY LYING IN HIS SUMMATION AS TO THE EVIDENCE NOT PLACED BEFORE THE JURY, HOWEVER, IS KNOWN TO THE PROSECUTOR.

While characterized as a supplemental brief, the filing is, in reality, a supplemental petition for post-conviction relief as in some instances, it raises issues for the first time that have not been addressed by the trial judge. Moreover, it raises issues that may be subject to a procedural bar as they are raised for the first time beyond the five year limit established by the Rules of Court. R. 3:22-12(a).

We invited the prosecutor to respond to defendant's supplemental brief, and he has done so; however, we are mindful of the admonition of the Supreme Court in State v. Arthur, 184 N.J. 307, 327 (2005), about considering issues not presented to the trial court. The cautionary note is particularly applicable here where both substantive and procedural issues may warrant review with the possibility of a hearing*fn2 . See State v. Castagna, 187 N.J. 293, 313 (2006) (stating "[o]ur courts have expressed a general policy against entertaining ineffective- assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record"); State v. Allah, 170 N.J. 269, 285 (2002) (stating "[g]enerally, ineffective assistance of counsel claims are not entertained on direct appeal 'because such claims involve allegations and evidence that lie outside the trial record'") (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). Although the cited cases focus on a direct appeal, the same principles apply here as well.

In sum, we disapprove of the use of a supplemental brief to raise issues, which, in effect, may be perceived as a method of avoiding consideration of the procedural bar to such claims or raises issues that have not been considered by the trial court. We affirm the denial of defendant's PCR. To the extent defendant's supplemental brief raises issues that have not been addressed in the prior PCR, we deny relief as to those issues without prejudice to defendant filing an appropriate PCR seeking consideration of such issues. We neither decide nor comment on any procedural defenses that may be available to the State on such application nor do we retain jurisdiction over such subsequent filing.

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.