On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1368.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 21, 2009
Before Judges Axelrad and Sapp-Peterson.
Defendant Augustin Garcia appeals from the May 4, 2007 order denying his petition for post-conviction relief (PCR), in which he alleges ineffective assistance of trial, appellate and PCR counsel, as well as prosecutorial misconduct and jury prejudice. We affirm.
Following a lengthy jury trial, defendant was convicted of purposely and knowingly causing his ex-girlfriend's death, two weapons offenses, and two counts of endangering the welfare of a child. The convictions arose out of an incident in which defendant appeared at his former girlfriend's wedding as an uninvited guest and shot and killed her at close range in the presence of witnesses, including children. The shooting was captured by the wedding videographer on high resolution video tape, which was copied exactly by Ridgefield Police Lieutenant David Cassirer to a VHS tape for viewing in court. Contrary to what the tape revealed, defendant testified that after he entered the bride's house where the wedding was being held, her brother and others attacked him, he reached for his gun to protect himself, and at some point during the struggle he blacked out and learned that the bride had been killed. Defendant also claimed that upon learning of the bride's death, he stated he wanted to kill himself. After the final shot, defendant was restrained when he attempted to reload the gun.
The trial judge sentenced defendant to life in prison, with thirty years of parole ineligibility, for murder; a consecutive four-year term for third-degree unlawful possession of a weapon; and two concurrent four-year terms for endangering the welfare of a child. We affirmed defendant's convictions and sentences for murder and the weapons offenses, but reversed the convictions on the two counts of endangering the welfare of a child. State v. Garcia, No. A-3939-01T2 (App. Div. May 11, 2004). The Supreme Court denied defendant's petition for certification on September 10, 2004. State v. Garcia, 181 N.J. 545 (2004).
This PCR petition ensued and was denied by Judge William Meehan on May 4, 2007, following oral argument with defendant present, but without an evidentiary hearing. Defendant sought relief from the judgment on approximately fifty grounds asserted in pro se submissions and those of PCR counsel, claiming ineffective assistance of trial and appellate counsel. Some of the litany of defendant's claims of ineffectiveness of trial counsel included failing to: properly advise defendant regarding the pre-sentence report process, subpoena and investigate certain witnesses, provide him with the right to a fair trial via a series of omissions and derelictions, conduct a reasonable pre-trial investigation into evidence seized and file a motion to suppress the wedding tape based on tampering, secure his right to be present at critical stages of the proceeding, and advocate mitigating factors and downplay the aggravating factors. Defendant claimed appellate counsel failed to raise and argue pertinent legal and factual issues. Defendant further contended he was deprived of a fair trial as a result of prejudicial errors committed by the trial court, prosecutorial misconduct and alleged tampering with the tape, and jury prejudice as a result of the media, to name a few.
Defendant's claims were rejected by the PCR court. The court noted that defendant had the benefit of three experienced trial attorneys who "spent a great amount of time [with him] deciding which arguments to put forward and the theory of the case." The court found that defendant only made blanket claims of ineffective assistance of counsel, failed to identify what evidence the additional investigation would have supplied, and failed to establish how his various trial counsel were deficient. The court also determined that defendant's ineffective appellate counsel claim - that he failed to raise winning issues on appeal - was similarly without basis.
As to the claim of prosecutorial misconduct, the court held there was no indication the video had been tampered with and no evidence at all the video had been manipulated in any way other than the way it was done in open court with defendant and his three attorneys present, which included freezing frames and excluding the portions that did not pertain to the shooting.
As to the claim of jury impartiality, the court pointed out that media coverage was first started by defendant's trial counsel in press conferences on the courthouse steps, which the court stopped. The court concluded the media matter was not "a great live issue" during the trial, and voir dire had established which jurors could remain impartial. The court further responded to defendant's claims that it was biased or prejudiced against defendant and denied defendant's motion to disqualify itself and the prosecutor from the case. This appeal ensued.
On appeal, defendant asserts the following arguments through counsel:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL ESSENTIAL WITNESSES TO TRIAL.
B. TRIAL COUNSEL FAILED TO OBJECT OR MOVE FOR A MISTRIAL BASED ON THE PROSECUTOR'S USE OF PERJURED TESTIMONY.
C. TRIAL COUNSEL FAILED TO OBJECT TO THE JURY CHARGE.
D. TRIAL COUNSEL FAILED TO MOVE FOR THE DISMISSAL OF JURORS AND FAILED TO INSIST UPON ADDITIONAL VOIR DIRE.
E. TRIAL COUNSEL FAILED TO OBJECT TO THE EXCLUSION OF DEFENDANT AND THE PUBLIC FROM ...