April 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MONTE TORRES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-06-2656.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2010
Before Judges Carchman and Parrillo.
Following a jury trial, defendant Monte Torres*fn1 and his co- defendant Jannette Alvarez were found guilty of first-degree purposeful and knowing murder, N.J.S.A. 2C:11-3a(1) and (2); and third-degree endangering, N.J.S.A. 2C:24-4. On May 16, 1991, the trial judge sentenced defendant to a term of imprisonment of forty-years with a thirty-year period of parole ineligibility.
On appeal, defendant's conviction was affirmed, and the Supreme Court denied certification. 138 N.J. 270 (1994).
Defendant filed a petition for a writ of habeas corpus in the United States District Court, and that petition was denied in 1996 for failure to exhaust administrative remedies. On appeal to the United States Court of Appeals for the Third Circuit, defendant's application for a certificate of appealability was denied, whereupon on March 6, 2000, approximately nine years after his initial conviction and three years after denial of his habeas petition, defendant filed a petition for post-conviction relief (PCR). The motion judge denied the application as time-barred. On appeal, we reversed and remanded for reconsideration and a statement of findings of fact and conclusions of law as well as a determination as to whether an evidentiary hearing was necessary. On remand, Judge Patricia Costello,*fn2 in an expansive twenty-eight page written opinion, acknowledged the time-bar issue, R. 3:22-12(a), but addressed the merits of defendant's PCR claims. She concluded that defendant's assertions were without merit and dismissed the petition. Defendant appeals, and we affirm.
The facts were synthesized in Judge Costello's opinion:
The facts are as follows. On March 30, 1990 defendant Monte Torres struck what the medical examiner described as the fatal blow to Ciomi Velez*fn3 , the eight-month-old daughter of his paramour and co-defendant, Janette Alverez. Alverez also had two other children, five-year-old Anaiss*fn4 and three-year-old John*fn5 . Alverez had begun striking Ciomi earlier in the day. In the evening, Alverez had taken Ciomi to Rosa Cepeda's apartment where Cepeda noticed bruises all over the child and saw Alverez strike her hard in the face.
She saw [Alverez] hitting the child forcefully, and the child's head struck the wall and a changing table. Cepeda heard Alvarez declare that she was going to kill the baby and hit her until she dies. Cepeda intervened to stop the abuse. Alverez briefly left the apartment, leaving Ciomi with Cepeda, but return about a half-hour later to feed Ciomi and to take her home. Cepeda had seen Alverez strike Ciomi and her five-year-old brother in the past. Both Alverez and defendant hit Ciomi on the legs that day.
Later that evening, defendant was left alone by Alverez with the three children. According to Annais, he struck Ciomi with both a belt and his hand. The blows were to her back, her right side, and her abdomen and he warned Annais not to tell anyone what he had done.
When Alverez returned a short time later, it was to find defendant leaving the apartment with a limp Ciomi in his arms. A neighbor, Fernando Soriano, began to drive them toward Clara Maass Hospital, and defendant told him Ciomi had fallen off the bed. En route, Soriano was able to intercept an ambulance which took over the transportation of Ciomi and Alverez. Defendant asked Soriano to take him back home.
When they arrived back at the apartment building, defendant saw a police car in front and asked Soriano to drop him off at the corner. He told Soriano it was because he had outstanding warrants, but the warrant part of the statement was kept from the jury. The defense attorney suggested to the jury that defendant may have been concerned about traffic ticket warnings. Defendant eventually went back to the apartment and told Cepeda it was all his fault.
Doctors were unable to revive Ciomi, who died a few hours after arriving at the hospital. She was covered with bruises, old and fresh, on the front and back of her body. The cause of death was internal bleeding from a ruptured liver, tears to the mesentery and mesocolon and blood vessels, separation of the right pubic bone and sacrum and the ligaments holding them together, fracture of the pelvis, bleeding in her scalp and skull, and multiple contusions covering her body. The fatal blow described as one to the torso, done with great force.
Officer Carmen Pelose of the Newark Police Department went to the apartment door and knocked a number of times, accompanied by employees of the Division of Youth and Family Services ("DYFS"), who were concerned there might be other children in the apartment in danger. (Alverez was in the process of giving her first statement to police when Pelose was dispatched to the apartment.) They received no answer, but heard voices inside. They apparently knew of Ciomi's injuries before they arrived at the apartment. At the DYFS employees' direction, Officer Pelose forced his way inside, and found defendant, Annais and John.
Defendant testified at trial. He stated that during the course of the day, he had consumed a few beers.*fn6 He was given his Miranda warnings twice. Detective James Fultz testified that the defendant understood the warnings and spoke unaccented English well, but expressed difficulty reading. The warnings were given to him verbally, because Detective Fultz felt that since defendant only had a seventh grade education, he might have difficulty reading them. Defendant admitted to slapping Ciomi twice and hitting her once in the stomach, but not hard. He said she then stared nodding out, like she was in a daze. He also admitted to hitting her on the legs on prior dates. Later, defendant and Alverez were arrested. At trial, defendant admitted to hitting Ciomi in the abdomen. He later partially recanted and denied hitting her on the night of the incident. Investigator Patrick De Francisi testified that Annais told him both defendant and Alverez had struck Ciomi, and that defendant had warned her not to tell anyone he had thrown Ciomi from the crib to the floor.
On his direct appeal, defendant raised the following issues:
I. THE DEFENDANT'S RIGHT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY STATE CONSTITUTION (1947) WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS LEGAL INSTRUCTIONS TO THE JURY:
A. THE TRIAL COURT INCORRECTLY INSTRUCTED THE JURY ON THE LAW OF ACCOMPLICE LIABILITY.
1) THE TRIAL COURT'S INSTRUCTION ON ACCOMPLICE LIABILITY BASED ON AIDING AND FACILITATING THE PRINCIPAL IN THE COMMISSION OF THE CRIME WAS INCOMPLETE AND CONFUSING. (Not Raised Below)
2) THERE WAS AN INSUFFICIENT FACTUAL BASIS FOR THE TRIAL COURT'S INSTRUCTION TO THE JURORS THAT THE DEFENDANT MAY BE FOUND GUILTY AS AN ACCOMPLICE BASED ON A BREACH OF DUTY OF CARE AS A CUSTODIAN OR GUARDIAN OF THE VICTIM CHILD. (Not Raised Below)
B. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON MISTAKE OF LAW NOTWITHSTANDING A RATIONAL BASIS IN THE EVIDENCE TO SUPPORT THAT DEFENSE. (Not Raised Below)
C. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON VOLUNTARY INTOXICATION TO NEGATE A PURPOSEFUL OR KNOWING MENTAL STATE NOTWITHSTANDING A RATIONAL BASIS IN THE EVIDENCE. (Not Raised Below)
D. THE TRIAL COURT INCORRECTLY INSTRUCTED THE JURY THAT IT MAY CONSIDER THE DEFENDANT'S CONDUCT AS FLIGHT, MANIFESTING A CONSCIOUSNESS OF GUILTY. (Not Raised Below)
E. THE TRIAL COURT INCORRECTLY INSTRUCTED THE JURORS THAT THEY MAY DISREGARD THE STATEMENTS OF THE CO-DEFENDANT IF THEY DETERMINED THAT THE STATE HAD FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE POLICE HAD ADMINISTERED MIRANDA WARNINGS AND SECURED A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER. (Not Raised Below)
F. THE TRIAL COURT INCORRECTLY INSTRUCTED THE JURY THAT PRIOR INCONSISTENT STATEMENTS MAY BE USED AS SUBSTANTIVE EVIDENCE NOTWITHSTANDING THE STATE'S FAILURE TO COMPLY WITH THE RELIABILITY REQUIREMENTS OF EVIDENCE RULE 63(1)(A). (Not raised below)
G. THE TRIAL COURT INCORRECTLY INSTRUCTED THE JURORS THAT THEY MAY DISREGARD OTHER CRIMES EVIDENCE OF THE CO-DEFENDANT PROFFERED ON THE ISSUE OF HER STATE OF MIND IF THE JURORS FOUND THAT THE STATE FAILED TO PROVE THOSE ACTS BEYOND A REASONABLE DOUBT. (Not Raised Below)
H. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT OTHER CRIMES EVIDENCE OF CHILD ABUSE BY THE DEFENDANT MAY NOT BE USED TO SHOW THAT HE HAS A CRIMINAL DISPOSITION TO COMMIT THE CRIME OF CHILD ABUSE. (Not Raised Below)
I. THE CUMULATIVE EFFECT OF THE JURY INSTRUCTION ERRORS DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. (Not Raised Below)
II. TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS DEFENDANT'S STATEMENTS AS THE FRUIT OF UNLAWFUL SEARCH AND SEIZURE DEPRIVED THE DEFENDANT OF THE RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION (1947). (Not Raised Below)
III. THE DEFENDANT'S RIGHT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY STATE CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT TO THE JURY. (Partially Raised below)
IV. THE DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A UNANIMOUS JURY VERDICT [UNITED STATES CONST. AMEND. VI; NEW JERSEY STATE CONST. (1947) ART. 1 PAR. 9]. (Not Raised Below)
Defendant, in a pro se supplemental brief, raised the following additional issues:
I. DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS VIOLATED BY THE PERJURED TESTIMONY OF DETECTIVE JAMES FULTZ DURING THE SUPPRESSION HEARING IN VIOLATION OF THE FOURTEENTH AMENDMENT. (Not Raised Below)
II. THE TRIAL JUDGE'S RULING ON ADMISSIBILITY AND VOLUNTARINESS OF STATEMENT WAS TAKEN IN VIOLATION OF THE U.S. CONST. AMENDS. IV, V, VI AND XIV AND N.J. CONST. OF 1947, ART. I, ¶ 7 & 10 AND THE COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION REQUIRES REVERSAL OF CONVICTION:
A. DEFENDANT'S RIGHT TO A FAIR TRIAL WAS DENIED BY THE ADMISSION OF A STATEMENT OBTAINED AS FRUIT OF AN ILLEGAL ARREST. (Not Raised Below)
B. DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE ADMISSION OF A STATEMENT TAKEN WITHOUT A VALID WAIVER OF HIS MIRANDA RIGHTS IN VIOLATION OF THE FIFTH AMENDMENT. (Not Raised Below)
C. DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE USE OF AN INVOLUNTARY STATEMENT TAKEN IN VIOLATION OF THE CONSTITUTIONAL AMENDMENTS V & XIV AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-DISCRIMINATION. (Not Raised Below)
III. THE USE OF CLOSED CIRCUIT TELEVISION TO TAKE THE TESTIMONY OF ANAISS VELEZ VIOLATED THE SIXTH AMENDMENT RIGHT AND ART. 1, ¶ 10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below)
In his May 2000 PCR, defendant raised the following issues:
(1) the prosecutor, co-defendant's counsel, and the judge were all at fault in permitting the jury to hear prosecution witness Fernando Soriano's perjurious testimony;
(2) the court erred when it permitted a five-year-old witness (co-defendant's daughter) to testify without a "taint" hearing to determine the reliability of her statements, as required by State v. Michaels, 136 N.J. 299 (1994);
(3) defendant was entitled to discovery and a new trial because of newly discovered evidence that an Essex County Prosecutor's Office detective who testified against defendant was subsequently indicted for falsifying records and tampering with evidence (in other cases);
(4) defendant was denied the effective assistance of counsel at trial, at least entitling him to an evidentiary hearing on ten grounds cited;
(5) the trial was tainted by the court's bias and by prosecutorial misconduct including subornation of perjury;
(6) defendant received ineffective assistance of counsel on direct appeal when counsel failed to raise appellate issues brought to his attention by defendant, including the trial judge's erroneous ruling excluding evidence that defendant sought to avoid police because of prior outstanding warrants, and not due to any consciousness of guilt in the baby's death; and
(7) ineffective assistance of trial counsel in failing to move to suppress defendant's statements based on Miranda*fn7 violations.
Here, defendant claims that his delay in filing was due to excusable neglect; there are no issues precluded from being raised in a PCR hearing; he was denied effective assistance of trial counsel, who allegedly failed to properly investigate or prepare for trial; he was denied effective assistance of appellate counsel; and the accumulated errors require a new trial.
Defendant's judgment of conviction was entered on May 16, 1991, and defendant filed his PCR on March 5, 2000. R. 3:22- 12(a) mandates that a defendant file a petition for post- conviction relief "within five years of entry of the judgment memorializing the conviction . . . ." State v. Dugan, 289 N.J. Super. 15, 20 (App. Div.), certif. denied, 145 N.J. 373 (1996); State v. Milne, 178 N.J. 486, 491-92 (2004); see also State v. Goodwin, 173 N.J. 583, 593-94 (2002); State v. Murray, 162 N.J. 240, 245 (2000).
At the hearing on the PCR, the State took no position on the time-bar issue. The trial judge noted the delay but considered the merits of the PCR. We consider it appropriate to address the time-bar issue, as we would resolve the appeal on that basis.
The five-year time limit in Rule 3:22-12(a) is to be "rigorous[ly] applied . . . in accordance with its plain meaning." Murray, supra, 162 N.J. at 248, 249. There are few exceptions to application of its restrictions. A defendant must either present (1) facts that demonstrate "excusable neglect" or (2) demonstrate "exceptional circumstances" warranting relaxation of the rule. Goodwin, supra, 173 N.J. Super. at 594. Defendant has established neither here.
Defendant alleges that he could not bring his current claims earlier because had pursued a petition for a writ of habeas corpus in federal court.
In Milne, supra, the Court recognized that "a defendant's pursuit of federal review ordinarily would not extend the time frame within which to file within which to file a PCR petition in State court." 178 N.J. at 494; see also Pressler, Current N.J. Court Rules, comment 2 on R. 3:22-12 (2010) (observing that, pursuant to case law, calculation of five-year period under Rule 3:22-12(a) "commences when the judgment of conviction is entered and is neither stayed nor tolled by appellate or other review proceedings").
Here, defendant's habeas petition was filed within the five-year period and was dismissed for failure to exhaust State remedies during that period as well. Rather than file a PCR, defendant pursued the matter by way of an appeal to the Third Circuit. By the time that court determined that it would not issue a certificate of appealability, the five-year period had run.
Even if there is no excusable neglect, a court may still consider the second exception to the Rule and determine whether there are "exceptional circumstances" warranting relaxation. "In the context of post-conviction relief, a court should relax Rule 3:22-12's bar only under exceptional circumstances."
State v. Mitchell, 126 N.J. 565, 580 (1992); see also State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[A]bsent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year time period increases with the extent of the delay[,]" and the defendant must supply "facts that demonstrate a serious question about his guilt[.]" Ibid. In this case, defendant does not raise a serious question about his guilt. If defendant's petition is considered, nothing would remain of the lofty "exceptional circumstances" hurdle. Goodwin, supra, 173 N.J. Super. at 594.
We conclude that on this record, defendant has neither demonstrated excusable neglect nor exceptional circumstances warranting relief from the procedural bar of Rule 3:22-12. While we recognize that Milne was decided on a second PCR petition, we are satisfied that defendant was on notice both by an understanding of New Jersey's Rules of Court as well as the admonition of the federal court that he was in the wrong forum, and defendant should properly have moved forward for PCR in a timely manner.
Judge Costello addressed the merits of defendant's PCR claim. Although we would conclude that it was procedurally barred, in the interests of justice we have considered the merits of defendant's PCR. Upon review of the record, we conclude that Judge Costello correctly denied relief, and defendant's claims are without merit.
As to the merits, we affirm substantially for the reasons set forth in Judge Costello's thorough and thoughtful written opinion of August 7, 2008.