May 18, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL A. SUAREZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-04-0624.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2010
Before Judges Carchman and Parrillo.
Defendant Miguel Suarez appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Tried by jury, jointly with co-defendant Richard Morales, defendant was convicted of multiple charges arising out of a triple homicide, namely second-degree conspiracy to commit armed robbery; second-degree conspiracy to commit murder; first-degree robbery; three counts of first-degree murder; and various weapons offenses.*fn1 After appropriate mergers, defendant was sentenced to three life terms with a ninety-year parole bar. We affirmed the judgment of conviction, finding overwhelming evidence of defendant's guilt, but remanded for clarification that the No Early Release Act (NERA) did not apply to the murder conviction, and for the court to impose a NERA sentence on the armed robbery charge. State v. Miguel Suarez and Richard Morales, Nos. A-5638-00T4 and A-6768-00T4 (App. Div. May 21, 2004). The Supreme Court denied certification. State v. Suarez, 181 N.J. 547 (2004).
By way of background, we recite the facts underlying defendant's convictions as stated in the Law Division's October 26, 2007 decision denying defendant's PCR petition, as they may be relevant to issues on this appeal:
On October 23, 1997, Guarang Kalsaria (age 11) found three dead bodies in his home. His sister, Nahal Kalsaria, soon arrived home from school. Both children ran to a neighbor's house and called the police. Prior to this, another neighbor had phoned the police regarding a suspicious vehicle she noticed parked illegally between the house and another house. Upon arrival, the police saw the vehicle and occupant, co-defendant Darwin Godoy, was seated inside.
A cellular phone began to ring several times, and the officer noticed up to three different cellular phones within the vehicle. Mr. Godoy was detained by the police.
Later that day, officers responded to the 911 call placed by the children of the residence. Officers found the dead bodies of Ajit Hira, Rejesh Kalsaria, and Bhushan Raval. At trial, Darwin Godoy testified for the State. According to his testimony, co-defendant Dimpy Patel told him he needed someone killed and asked Godoy if he knew anyone. At that point, Godoy introduced Patel to the [defendant]. Godoy testified that he knew the [defendant] because he purchased illegal cell phones from him. On the day of the murders, Godoy supplied the [defendant] with the necessary information to complete the murder. Suarez and co-defendant Morales drove to the home of one of the victims and Godoy followed them in a separate vehicle. Godoy testified that he waited in the car while the [defendant] and Morales went in with gloves, a gun, a bulletproof vest, and duct tape. Godoy pled guilty to murder and two counts of aggravated manslaughter and received a sentence of thirty years imprisonment with thirty years parole ineligibility.
Other witnesses for the State included the [defendant]'s girlfriend, Betsy Tufino, and a George Rivera. Ms. Tufino testified that she was aware that Godoy wanted the defendant to rob and kill an Indian man in return for $20,000 and some diamonds. Mr. Rivera, Suarez's cell mate, testified also.
He met the [defendant] in December of 1997 when they were cell mates for two weeks at the Bergen County Jail. Mr. Rivera testified to conversations he had in March of 1999 with the [defendant] about the murders. Rivera corroborated Godoy's testimony and stated that the [defendant] told him Patel wanted a man killed for swindling him out of money for diamonds and [defendant] agreed to complete the murder for $50,000. Mr. Suarez apparently provided Rivera with details about the weapons used and how the murder was planned. Specifically, he revealed the plot of the murder, including the agreement to do the job for hire, the fact that he purchased a MAC 11 with a silencer, that he wore a bullet-proof vest and had stored the MAC 11, silencer, and duct tape in a duffle bag and that he and Morales were each carrying a nine-millimeter handgun. Rivera further testified that [defendant] and Morales, upon arrival at the home, realized there were three men present and that although they did not know which man they were supposed to kill, they wanted to complete the job so the [defendant] shot all three men. The third man was not dead right away and allegedly Suarez proceeded to stab him repeatedly in the chest. According to Rivera, after the [defendant] and Morales exited the house they stole a Toyota from the home and drove it to Newark and gave it to a neighborhood friend to sell.
Police applied for and obtained a search warrant for the defendant's home in Newark where they found a light blue bullet-proof vest hidden under a mattress. They also searched co-defendant Patel's home and found a piece of paper on which the name of the victim had been written, along with his phone number, address, and the notation "brick house". They also found a second piece of paper contained the name "Angel" (defendant's nickname) and several numbers later identified as the defendant's cell phone and pager numbers. The stolen Toyota, which belonged to one of the victims (Hira) was ultimately located several blocks away from Suarez's home in Newark. Fibers gathered from Suarez's Honda Accord were subsequently determined to match fibers found on the duct tape removed from the murdered men.
Telephone records of the four conspirators were obtained and confirmed that between October 1 and 24, 1997 there were numerous calls between Godoy, Suarez, and Patel. Godoy and Suarez had been on the phone for 41 minutes just before Officers Sepp approached Godoy's parked car on the day of the murders, and Suarez called Godoy back 5 minutes later while Godoy was being interviewed by the police. Suarez also called Godoy 3 more times in rapid succession. According to Kalsaria's (victim) caller I.D., Suarez had called the Kalsaria home at 12:07 p.m. in an apparent attempt to ascertain who was home.
While his direct appeal was pending, defendant had filed a motion for a new trial on the basis of newly discovered evidence, which was stayed pending the outcome of the appeal. The newly discovered evidence, which was adduced at the subsequent trials of co-defendants Darwin Godoy and/or Dimpy Patel, consisted of a co-conspirator's subsequent recantation of certain testimony he gave at defendant's trial and another co- conspirator's so-called "exculpatory" evidence. A hearing on the motion for a new trial was eventually held on October 25, 2005, after which the Law Division judge, who had presided over defendant's trial and that of his co-conspirators, denied the requested relief. Defendant appealed, and in a per curiam opinion filed February 4, 2009, this court affirmed, finding "that the newly discovered evidence is cumulative and not material; at most, it is impeaching and contradictory, having no likelihood of changing the verdict if a new trial were granted." State v. Suarez, No. A-1965-05T4, (App. Div. Feb. 4, 2009) (slip op. at 21) (Suarez II). The Supreme Court denied certification in an order filed April 23, 2009. State v. Suarez, 199 N.J. 132 (2009).
In the meantime, in November 2005, defendant filed the instant PCR petition, alleging ineffective assistance of pre- trial and trial counsel. After hearing oral argument and following our temporary remand to allow the Law Division to complete the proceedings during the pendency of defendant's appeal of the denial of his new trial motion, the PCR judge heard additional argument in the matter on October 26, 2007, and issued its letter opinion thereafter, denying relief. Therein, the PCR judge found the twenty attorney errors and deficiencies alleged by defendant "both individually and cumulatively, are insufficient to warrant an evidentiary hearing or to grant the post-conviction relief sought by" defendant. By way of example, the PCR judge found that many of the claimed lapses were unsubstantiated by either an affidavit or certification setting forth the basis for defendant's proffer, its materiality, or its capacity to have affected a verdict otherwise supported by overwhelming evidence of guilt. The claimed error in failing to call defendant's parents to testify was unsupported by an affidavit or certification setting forth the basis of the parents' proposed testimony or the failure of trial counsel to interview them, as was the claimed error in failing to have Betsy Turino's mother testify, or to call a defense expert about the fibers found in defendant's car and on the duct tape used on the victims.
The PCR judge similarly rejected defendant's claim that counsel should have moved for a new trial. The court reasoned:
Once the trial concluded and [defendant] was found guilty, counsel did move for a new trial based on the outcome of co-defendant Patel's trial. In that motion, [defendant] claimed that Godoy's testimony was inconsistent with the testimony he provided at Suarez's trial. Judge Conte denied the motion holding that Godoy's testimony was substantially similar to his prior testimony. Judge Conte had also presided over the Patel trial and indicated that his version, which was rejected by the jury, was incredible. Credibility findings are normally left undisturbed by reviewing courts. [Defendant] now argues that appellate counsel should have raised the new trial issue based on Godoy's testimony at his own trial and also his testimony at Patel's trial. The trial judge already ruled on the testimony given at Patel's trial and this Court agrees with his decision. As per Godoy's own trial, this Court has not been provided with the transcripts of Godoy's trial. Furthermore, it appears that an appeal has been filed and is currently pending in the Appellate Division relating to the denial of the motion for a new trial. Finally, in order to gain a new trial based upon newly discovered evidence, a defendant must establish that the evidence is material to the issue and not merely cumulative or impeaching or contradictory, the evidence must be discovered since the trial, and the evidence must be of the sort that would probably change the jury's verdict. State v. Carter, 91 N.J. 86, 121 (1982). Arguing that Godoy has an inconsistency in his story at his trial pertaining to whether he was paid or not for his participation in the murders is not material. This "new evidence" is not material to any issue other than whether he was actually paid and would simply impeach Godoy's credibility. There is no showing that the jury would believe Suarez was not guilty based on the fact that Godoy may or may not have actually been paid.
The PCR judge similarly rejected defendant's claim of counsel ineffectiveness for failing to discredit Rivera, the so- called jailhouse informant. The judge concluded:
[Defendant] argues that George Rivera fabricated his story in order to obtain a favorable plea and raises various issues with respect to trial counsel's failure to discredit Mr. Rivera which he now contends also constituted ineffective assistance of counsel. Specifically, [defendant] asserts that a subsequent search of [defendant's] ail cell revealed a recantation letter written by Mr. Rivera. Alternatively, he argues that an undercover detective, Michael Rodriguez, pretended to be Mr. Rivera's cousin and further argues that they might in fact be cousins. In any event he contends, without any substantiation, that these two individuals "hatched this entire scheme to help Rivera get out of jail and ensure that [defendant] rotted in jail". However, the trial record establishes that trial counsel and counsel for the co-defendant did in fact argue that the jury should be precluded from hearing any testimony with respect to [defendant's] alleged plot to kill two of the witnesses. This Court is also mindful of the State's argument that had defense counsel attempted to advance the claim that Rivera concocted the hit man story, that it would have "opened the door" for the State to present its evidence, including tape recordings, demonstrating that [defendant] was indeed attempting to hire a hit man to kill two of the witnesses, who ultimately testified against him. Thus, as this appears to have been an issue of trial strategy, the court does not find that [defendant] has adequately established a basis for relief.
Similarly, the Court rejects [defendant's] argument that trial counsel was ineffective in failing to call two witnesses, Nicholas Kyriazis and Melvin Collins, who allegedly had knowledge that Mr. Rivera fabricated a story to gain a more favorable sentence and/or that Rivera had access to the [defendant's] pre-trial discovery, thus furnishing him with a source of the facts which he then utilized in his effort to "frame" the [defendant]. Again the State argues that the introduction of such testimony would have "opened the door" to admit its damaging evidence against the [defendant], and hence defense counsel's decision not to call these witnesses constituted sound trial strategy.
On appeal, defendant renews the same arguments he raised below:
I. THE DENIAL OF DEFENDANT'S MOTION FOR NEW TRIAL WAS ENTERED IN VIOLATION OF HIS FEDERAL CONSTITUTIONAL RIGHTS.
II. THE DENIAL OF DEFENDANT'S INITIAL PETITION FOR POST-CONVICTION RELIEF VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS, AND STATE CONSTITUTIONAL PROVISIONS.
a. Initial Disposition Absent Presentation of Evidence and Evidentiary Hearing Resultant In A Denial of Due Process.
b. Claims 2 To 12 and 14 To 18 Urged By Defendant Are Supported By Case Law Demonstrating An Abundance Of Federal Constitutional Violations.
(1) Failure to present witnesses regarding jail house informant's access to defendant's discovery and impeachment.
(2) Lack of expert testimony and investigation.
(3) Failure to investigate blood evidence at trial.
(4) Failure to request appropriate jury instructions, required under state law.
(5) Suppression of Tufino statements and derivative testimony.
(6) Omitted quasi-alibi defense.
(7) Cumulative effect of the instances of ineffective assistance, as well as the cumulative effect of all of the ineffective instances with the new evidence.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated in Judge Carroll's comprehensive letter opinion of October 26, 2007. We have already affirmed the denial of defendant's motion for a new trial, Suarez II, supra, slip op. at 19. The mere re-casting of the claim on appeal in constitutional terms, which we deem of no merit, does not save it from the procedural bar of Rule 3:22-5. As for the numerous claims of ineffective assistance of counsel, we note that defendant has not presented a prima facie case that any of them fell below an objective standard of reasonableness to have warranted an evidentiary hearing. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant has not demonstrated a reasonable probability that the alleged deficiencies, singly or cumulatively considered, prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52-53 (1987).