November 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONG MOON CHOE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-08-1440.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Payne and Baxter.
Defendant Jong Moon Choe appeals from a March 6, 2009 order that denied his petition for post-conviction relief (PCR). Following his March 7, 2003 conviction on a charge of murdering his wife, defendant filed a PCR petition in which he asserted that trial counsel rendered ineffective assistance by failing to raise the defense of justifiable use of force for self protection (self-defense). Even if we were to accept defendant's contention that trial counsel was required to interpose such a defense, we reject defendant's claim that this omission led to a conviction on the charge of first-degree murder that would have been avoided had the defense of self-defense been raised. We affirm.
In January 1997, defendant and his wife, Tok Sun Pae, had been married for approximately ten years and were experiencing marital difficulties. In the early part of January 1997, Pae told defendant she was planning to drive to Winburne, Pennsylvania to visit her friend Myra. On January 15, 1997, Pae's brother, Deuk Kil Pae, received a telephone call from Myra expressing concern because Pae had not arrived at her house as expected. After receiving that telephone call, Deuk asked defendant to call police and report his sister missing. Deuk did not call police himself because he had difficulty speaking and understanding English.
The next day, January 16, 1997, defendant reported his wife as missing to the Little Ferry Police Department. Defendant provided a description of his wife to Captain Dennis Hofmann and told him the type of car she had been driving. Hofmann testified that he spoke to defendant in English and had no trouble communicating with defendant, who was Korean. Four days later, on January 20, 1997, Hofmann called defendant asking whether he had heard from his wife or received any information about her whereabouts. Defendant said he had not.
The next day, Investigator Mark Bendul of the Bergen County Prosecutor's Office, who was fluent in Korean, spoke with defendant at Little Ferry Police headquarters. After greeting defendant in Korean, the two conversed in English, with defendant speaking English and not asking Bendul to speak to him in Korean. Among other things, defendant told Bendul that he suspected his wife was having an affair and that the two had been arguing because Pae had not been putting much effort into their liquor store business. Defendant insisted that on the Monday his wife had left to visit Myra in Pennsylvania, she had come to the liquor store at approximately 1:00 or 2:00 p.m., left for a few hours, and returned at approximately 6:00 p.m., after which she told him she was leaving for Pennsylvania. Defendant told Bendul he had not seen his wife since.
On January 30, 1997, as part of the investigation into Pae's disappearance, Detective John Palotta of the Bergen County Prosecutor's Office contacted the New York State Investigative Review Systems database to find out if the van Pae had been driving at the time of her disappearance had been seized or ticketed anywhere in New York State. By searching the database, Palotta located the vehicle at 149th Street in Manhattan and learned that two parking tickets had been left on the windshield of the vehicle.
After police found Pae's van, Detective Bendul and Investigator Greg Donatello, also from the Prosecutor's Office, went to defendant's liquor store, told defendant his wife's van had been located, and asked him to come to the Prosecutor's Office for an interview. Bendul issued defendant Miranda*fn1
warnings, in Korean, both orally and in writing.
At the beginning of the interview, Bendul and Palotta told defendant that Salvatore Gonzalez, who worked in defendant's liquor store, had told investigators that although he had not seen Pae on the Monday she left for Pennsylvania, defendant had repeatedly tried to convince him he was wrong and that he had indeed seen her on that day. Upon being confronted with this information, defendant called Gonzalez a liar and became very nervous. He began to stutter and, for the first time, asserted he could not understand English and began to speak in Korean.
The detectives continued to question defendant, with Detective Bendul translating. When Palotta and Bendul asked defendant if his wife might be missing due to an accident, defendant responded, "it wasn't an accident." Aware that defendant was a religious man, they emphasized to defendant the importance of his wife receiving a proper church burial.
At that juncture, defendant asked what was going to happen to him, to his son and to his store. He expressed concern about how he would be viewed in the Korean community. The detectives responded to defendant's inquiries by telling him they "just wanted to know where he put his wife's body." Defendant began crying and assured them he would tell them where her body could be found.
After one and one-half hours, defendant admitted he killed his wife while she was sleeping. He said he put her body in plastic bags, drove to a parking lot in Fort Lee and left her body behind the post office. He also admitted he drove his wife's van to New York and abandoned it to give the appearance that she had been missing. Defendant told Palotta and Bendul that after abandoning his wife's van on 149th Street, he took a cab back to Little Ferry. He drew a map showing them where his wife's body could be found. When asked what type of weapon he had used, he answered, without elaborating further, that it was not a gun or a knife.
Using the map that defendant had provided, investigators located Pae's frozen body. At that point, defendant was placed under arrest. At the conclusion of the interview, when Bendul asked defendant why he had killed his wife, he answered that she was "worthless" and was the kind of person who "deserved to be thrown away."
The Bergen County Medical Examiner, Dr. Sunandan Singh, testified that the middle fingers on Pae's right hand were broken, opining that these injuries were defensive wounds. Singh also described twelve lacerations to Pae's scalp and blunt force injuries on the right side of her head near her right ear. He opined that she died as a result of lacerations to the brain and fractures to the skull, due to multiple blows with a blunt, circular object. DNA analysis of blood droplets found in the apartment defendant had shared with his wife revealed that the blood droplets found in the bedroom and bathroom were hers.
After the State rested, the defense called two witnesses, Investigator Terrence Alver and Investigator Brian Callanan, both from the Bergen County Prosecutor's Office. Alver described using a high intensity light to search the van found abandoned on 149th Street and stated that the search did not yield evidence of any bodily fluid in the vehicle. Callanan testified about his interview of Gonzalez, noting that Gonzalez had initially told him he had seen Pae at the liquor store on January 13, 1997, but later on in the interview, had denied seeing her that day. Defendant, who had absented himself from trial, obviously did not testify.
In summation, defense counsel attacked the police investigation and the DNA evidence. He argued that defendant's statements were not voluntarily made and pointed out inconsistencies between the physical evidence and the State's proofs. He also pointed to inconsistencies in Gonzalez's statements to police and urged the jurors to disregard Gonzalez's testimony that he had not seen Pae on January 13, 1997.
On February 10, 1999, after the jury returned a verdict finding defendant guilty of murder, the judge issued a warrant for defendant's arrest. Defendant was not apprehended until the early part of 2003 and was sentenced on March 7, 2003, to a term of life imprisonment with a thirty-year parole ineligibility term. We affirmed defendant's conviction in an unpublished opinion. State v. Choe, No. A-2859-03 (App. Div. April 11, 2008). Defendant did not file a petition for certification with the Supreme Court.
On May 23, 2008, approximately six weeks after our opinion was issued, defendant filed the pro se petition that is the subject of this appeal, arguing that trial counsel rendered ineffective assistance by failing to raise the defense of self-defense. He also argued that appellate counsel rendered ineffective assistance by failing to seek certification from the Supreme Court. Defendant supported his petition with a certification in which he insisted that trial counsel only spoke to him a few times before trial and was not interested in hearing defendant's version of the events. According to defendant, trial counsel told him "at least 100 times" that he was guilty "and was going to get 30 years." He maintained he told trial counsel prior to trial that the death of his wife "was an act of self-defense." Defendant stated in his certification:
. . . On the day of [my wife's] death, she attacked me wit[h] a beer bottle and a knife. I blocked both attacks and defended myself by hitting her, in the head, with a rolling pin. . . . I believed that if I did not hit Ms. Pae she would have caused serious bodily harm to me.
Once I started hitting Ms. Pae, I cannot remember how many times she was struck. Due to the physical and mental stress, my mind went blank.
Defendant's certification also described the deterioration of their marriage:
Ms. Pae and I lived together for 10 years prior to getting married. Once married, I assumed and paid a $30,000 debt that Ms. Pae incurred. Further, I observed that Ms. Pae and her brother were stealing from my business.
Due to the enormous work schedule I was under, my entire body ached. I would work 16 hours a day every day during the week. I was physically and mentally exhausted from the work schedule and Ms. Pae's dishonesty. Defendant's certification also explained that his petition had been filed two months after the five-year deadline for the filing of a PCR petition had expired. See Rule 3:22-12(a)(1). He asserted that his "inability to comprehend the English language," and the fact that his direct appeal had not been concluded until after the five-year filing deadline had already elapsed, entitled him to relaxation of the filing deadline.
At the conclusion of the March 6, 2009 hearing, the judge held that defendant's petition was procedurally barred as it had been filed after the five-year time bar established by Rule 3:22-12 and defendant had not established excusable neglect. The judge specifically observed that a petitioner's inability to speak or write the English language did not constitute excusable neglect. Last, without elaborating, the judge held that defendant had not satisfied the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), for establishing a claim of ineffective assistance of counsel.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post-Conviction Relief.
B. Since the Defendant Presented a Prima Facie Case of Ineffective Assistance of Counsel, the Trial Court Erred in Denying his Petition for Post-Conviction Relief Without Affording Him an Evidentiary Hearing to Fully Address His Contention[s].
II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d. at 693. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).
Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.
A defendant who asserts the defense of self-defense is obligated by Rule 3:12-1 to serve written notice on the State of his intent to rely on that defense. Such notice must be served on the prosecutor no later than seven days before the arraignment/status conference, see R. 3:9-1(c), and a defendant must, at the same time, furnish the prosecutor with any discovery pertaining to that defense. Rule 3:12-1 further provides that if a defendant fails to serve the required notice of intent to raise self-defense, the court, in the "interest of justice," may refuse to allow a defendant to present witnesses in support of the defense. Alternatively, the court may adjourn the trial date, or grant a delay during the trial, to permit the notice to be served and the discovery to be provided.
To succeed on a self-defense claim, a defendant must establish that the use of force toward another person was "justifiable" because he "reasonably believe[d] that such force [was] immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4. Moreover, the use of force must be proportional in its intensity to the force being used against the defendant. Ibid.
We begin our review of defendant's claims by turning to Point II, in which defendant maintains that the PCR judge erred when he relied, in part, on a finding that the petition was time-barred. As we have noted, the judge also denied the petition on the merits, finding that defendant had not satisfied the two-prong Strickland test for ineffective assistance of counsel.
Rule 3:22-12(a)(1) requires a defendant to file a PCR petition no later than five years after the date of conviction, unless the delay beyond the five years "was due to defendant's excusable neglect" and "there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." A defendant's inability to read and write English does not constitute "excusable neglect" sufficient to relax the five-year filing deadline established by Rule 3:22-12(a)(1). State v. Cummings, 321 N.J. Super. 154, 166 (App. Div.), certif. denied, 162 N.J. 199 (1999). Thus, even if we were to conclude that defendant lacked fluency in the English language, a contention that is belied by the record, such inability to read or write English does not excuse a delay in filing the petition. Ibid.
We note, however, that defendant's direct appeal was not decided, and his conviction was therefore not affirmed, until April 11, 2008, some five weeks after the five-year deadline had expired on March 7, 2008. For that reason, we are reluctant to dispose of defendant's appeal on the ground that his filing was untimely and no excusable neglect was shown. Consequently, we turn to defendant's substantive arguments, which he presents in Point I.
We begin by noting that, contrary to the requirements of Rule 1:7-4, the PCR judge made no findings of fact. Instead, in violation of the Rule, he merely stated a conclusion that defendant had not satisfied the two-prong Strickland test. He did not explain the basis for that conclusion. Ordinarily, we would remand for a statement of reasons; however, because the issues on appeal are straightforward, we will address defendant's contentions without ordering a remand.
In undertaking that analysis, we will assume, as defendant asserts in his February 18, 2009 certification, that he told trial counsel that the death of his wife "was an act of self-defense" because she had attacked him "with a beer bottle and a knife." We will also assume, for the sake of analysis, that trial counsel's failure to file a notice under Rule 3:12-1 of defendant's intention to rely on self-defense was a deviation from the standards expected of a trial attorney, thereby satisfying the first Strickland prong.
We therefore turn to an analysis of whether, as the second Strickland prong requires, defendant was prejudiced by counsel's failure to file the notice of self-defense. Stated differently, we must decide whether there is a reasonable prospect that if the notice had been filed, and the defense of self-defense had been pursued at trial, defendant would have been acquitted of all charges, or, at a minimum, acquitted of murder and found guilty of passion/provocation manslaughter.
The State urges us to conclude that in light of defendant's absence from trial, the defense of self-defense could never have succeeded because the jury would have heard no testimony from defendant that his wife had threatened him with a beer bottle and a knife. Clearly, without evidence of a threat to his life, the defense of self-defense would have failed. See N.J.S.A. 2C:3-4.
Defendant implicitly concedes that his absence from the trial made it impossible for trial counsel to proceed with self-defense; however, he maintains that he "felt there was no reason to even appear at trial since he believed his fate had already been determined, once he realized trial counsel had no inclination or desire to present what the defendant clearly felt to be relevant and potentially mitigating information to the jury." He insists that "had trial counsel adequately represented [his] interests," and raised the defense of self-defense, he would have "appeared at trial so he could present what he believed to be relevant testimony . . . to convince the jury he should not be held accountable for the purposeful/knowing murder of his wife." Essentially, defendant maintains that had trial counsel filed the notice of self-defense and expressed a willingness to pursue that defense at trial, he would have appeared and testified, rather than absent himself from the proceedings. We note that defendant never complained to the judge about his trial attorney at any of the earlier hearings.
Our careful review of the record satisfies us that had the defense been presented it would not have succeeded. In his statement to Detectives Palotta and Bendul, defendant admitted that his wife was sleeping when he inflicted the fatal blows. Obviously, if she were sleeping, Pae could not have been threatening defendant with a knife and beer bottle. Defendant attempts to avoid the damaging consequences of his admission that his wife was sleeping, insisting his acknowledgment that he killed his wife while she was sleeping is "of no moment" because "there was no blood found on the bed itself." According to defendant, had he killed his wife while she was sleeping in bed, there would have been "a significant [amount] of blood found in the bed itself" and his wife "would not have suffered any defensive wounds, since she would have been rendered immediately unconscious by the various blows to her head . . . ."
Defendant's argument ignores many other damaging facts in the record, including his statement that his wife was "worthless" and was the kind of person who deserved to be thrown away. The jury also heard evidence that defendant, who had been speaking in English during the questioning by Detectives Palotta and Bendul suddenly switched to Korean and started stuttering when confronted with Gonzalez's assertions that Pae was not in the liquor store on the day defendant claimed he saw her alive and that defendant had tried to convince Gonzalez that she had, in fact, been there.
Moreover, the testimony the State presented demonstrated that defendant maintained his "missing person" story with police for nearly ten days and did not confess to the crime until after being confronted with Gonzalez's statements. Even when Palotta and Bendul stated that defendant's wife deserved a decent burial, defendant did not tell them that he had acted in self-defense. Instead, he said he killed her while she was asleep because she was "worthless." Of all the evidence the State presented at trial, by far the most damaging was defendant's failure to tell police that he acted in self-defense. He had ample opportunity to do so, but did not, instead maintaining that he killed his defenseless wife while she lay sleeping. Under such circumstances, and in light of all of the evidence, we deem it extremely unlikely that the jury would have accepted defendant's claim of self-defense had it been raised. This is especially so in light of Pae's broken middle fingers -- showing that she attempted to defend herself against her husband's attack -- and the lack of any evidence that defendant himself had sustained any wounds, cuts or injuries. The absence of any injuries to defendant renders his claim that Pae attacked him with a beer bottle and knife entirely unbelievable.
Nor are we persuaded by defendant's argument that because no blood was found on the bed, the jury would have accepted his self-defense claim. It is unlikely the jury would have seized upon this isolated fact, and accepted defendant's self-defense claim, in light of the overwhelming evidence to the contrary. It is far more likely that the jury would have believed that the first blow with the rolling pin did not cause Pae to bleed and that she was able to get out of the bed before defendant inflicted the rest of the blows. Moreover, the record demonstrates that police did not examine the bedroom until a significant period of time had elapsed, thereby allowing him to dispose of any blood-stained items.
We conclude defendant has not satisfied the second Strickland prong, which required him to show that counsel's failure to file the self-defense notice, and failure to preserve defendant's opportunity to present such a defense, resulted in a conviction that would otherwise have been avoided. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Moreover, as he did not present a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462 (1992). We thus reject all of the arguments defendant raises in Point I.
We have carefully considered defendant's remaining claim, that appellate counsel rendered ineffective assistance by failing to seek certification from the Supreme Court. We conclude this contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).