On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-10-3250.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Sabatino.
After a jury trial in 2001, defendant Carlos Alves was convicted of murder, N.J.S.A. 2C:11-3(a), for strangling to death his girlfriend, Maria Lobo. Defendant and Lobo had resided with one another for a decade, and, at the time of the homicide, they were cohabitating in a basement apartment in Newark.
According to the State's proofs, defendant and Lobo had dinner together in the apartment on the evening of Wednesday, August 11, 1999. Later that night, defendant strangled Lobo. The following day, Thursday, August 12, defendant booked and boarded a flight to Portugal, where his father was ill. Lobo, a cleaning woman, did not appear at her work sites on either that day or the following day, Friday, August 13. Her dead body was found on the sofa on Saturday, August 14, after police and firefighters broke into the locked apartment. She was wearing the same clothes that a neighbor had seen her wearing on Wednesday, August 11.
Defendant was located in Portugal and he returned to the United States the next day. After receiving Miranda*fn1 warnings, he was interviewed by the police in Portuguese, and he gave a formal statement. In his statement, defendant denied that he had killed Lobo. He insisted that they had both left the apartment on the morning of Thursday, August 12, stopped at a bakery, and then went off to their respective jobs. He maintained that he was in Portugal when Lobo was fatally attacked. At trial, his counsel suggested that the murderer could have been a third-party intruder into the apartment, because Lobo's pocketbook and keys were missing.
There was competing forensic proof at trial contesting the time of the victim's death, including an analysis of the undigested food found in her stomach post mortem. The State's expert, the medical examiner who performed the autopsy, opined that the victim died between sixty and seventy-two hours before her body was discovered around noon on August 14, thereby supporting the State's contention that she was killed on Wednesday, August 11. The medical examiner further opined that the victim had died approximately two hours after her last meal. A defense expert, on the other hand, estimated that the victim had died only thirty-six to forty-eight hours before she was found (i.e., after defendant had already departed to Portugal).
Defendant did not testify at trial. However, his police statement was admitted into evidence.
During the course of the trial, one of the jurors went out over the weekend to look at the parking signs in the neighborhood where the victim lived, which prohibited parking at specified hours of certain days. This suggested that, because no ticket was left on the car, the victim might have parked her car after defendant flew to Portugal. The juror discussed the results of that on-site inspection with the other jurors. The trial court excused that juror and replaced him with an alternate.
On the second day of deliberations, the jury found defendant guilty of first-degree murder. The trial judge imposed a sentence of thirty years, with a thirty-year period of parole ineligibility.
Defendant's conviction was sustained on direct appeal in an unpublished opinion. State v. Alves, No. A-4355-00 (App. Div. Jan. 23, 2003), certif. denied, 178 N.J. 455 (2004). Among other things, we specifically rejected defendant's arguments that defendant's police interview should have been suppressed and that the excused juror had tainted the remaining jurors. Id. (slip op. at 11-12).
Defendant then filed an application for post-conviction relief ("PCR"), arguing that his trial attorney and his counsel on direct appeal were ineffective in various respects. The PCR application was denied by the trial court, without an evidentiary ...