January 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN CARLOS SALAS, DEFENDANT-APPELLANT.
On appeal from the Superior County of New Jersey, Law Division, Camden County, Indictment No. 03-06-2075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Payne and Baxter.
Defendant Juan Salas appeals from a January 30, 2009 order that denied his petition for post-conviction relief (PCR). We affirm.
Following a trial by jury, defendant was convicted of two counts of murder, one count of attempted murder, one count of conspiracy to commit murder and related weapons offenses. The proofs at trial established that defendant, then seventeen years of age, along with his companions, took offense at the intrusion of others into what they deemed their territory in Camden for the sale of narcotics. Their solution was to slay the intruders. Two people lost their lives and a third survived.
Several months after the shootings, defendant was taken into custody and, in the presence of his mother, provided a statement about his involvement in the incident, which was played for the jury. In his statement, defendant asserted that the shootings were planned by Angel Mendoza, who recruited defendant and his brother. According to defendant, Mendoza supplied the guns and instructed him and his brother to shoot at the victims so they would run toward Mendoza, who would then kill them. Defendant said in his statement that he went along with the plan only because he was afraid of what Mendoza would do to him if he refused.
Defendant moved to suppress the statement. At the conclusion of the Miranda*fn1 hearing, Judge Natal denied defendant's motion and ruled defendant's statement to the police would be admissible at trial.
At trial, defendant recanted his statement to police. He maintained he only provided the statement because police would not let his mother leave until he did so. His mother's testimony corroborated that claim. Defendant testified he had no involvement in the shootings.
In affirming defendant's conviction, we rejected his claims that the prosecutor's summation was inflammatory and denied him a fair trial and that his sentence was excessive. State v. Salas, No. A-5553-04 (App. Div. July 3, 2007) (slip op. at 5-7). In the course of our discussion of defendant's claims, we observed that "the evidence presented against defendant can fairly be described as overwhelming." Id. at 6. Defendant did not seek certification from the Supreme Court.
Defendant filed a timely PCR petition in which he asserted, without elaboration, that he received ineffective assistance from both trial and appellate counsel. He also contended, again without elaborating, that the trial prosecutor committed "multiple instances of prosecutorial misconduct."
On January 30, 2009, Judge Natal conducted a hearing on defendant's PCR petition. In a comprehensive and well-reasoned oral decision that covers twenty-six transcript pages, Judge Natal denied the petition. After describing the general principles applicable to PCR proceedings, and reviewing our opinion on direct appeal, Judge Natal discussed each of the claims asserted. The judge began by addressing defendant's contention that appellate counsel was ineffective because he failed to seek certification from the Supreme Court even though defendant had asked him to do so. The judge denied that claim, reasoning that defendant's allegation was not supported by any affidavits demonstrating such a request had been made.
Second, the judge addressed defendant's claim that trial counsel was ineffective because he "inadequately investigated" defendant's case. Relying upon State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), Judge Natal observed that defendant had not met his burden of establishing a prima facie case of ineffective assistance of counsel because he had failed to submit any affidavits from witnesses that he claimed his attorney should have called, and whose testimony purportedly would have changed the outcome of the trial. The judge noted that Cummings requires a defendant to do more than make "bald assertions" that his attorney did not conduct a proper investigation. Because defendant had presented nothing other than "bald assertions," unsupported by the affidavits from witnesses that Cummings requires, the judge concluded that this claim should be rejected.
Turning to defendant's third argument, that trial counsel rendered ineffective assistance because he consulted with defendant "only once" prior to trial, the judge meticulously reviewed the record, and concluded that counsel had met with defendant on "12 or possibly 13" separate occasions. Reviewing the billing records submitted by trial counsel, the judge observed that trial counsel had met with defendant on at least six occasions between March 5 and October 15, 2004. The judge went on to point out, however, that defendant had also had the opportunity to confer with counsel on six or seven other occasions, such as during the Miranda hearing, or during the various status conferences and pretrial conferences required by Rule 3:9-1. Additionally, the judge observed that defendant failed to "allege what, if anything, more preparation would have accomplished" or "what facts that any more meetings would have brought out for the defense." For all of those reasons, the judge rejected defendant's claim that trial counsel rendered ineffective assistance by failing to consult with him prior to trial.
Fourth, the judge considered defendant's claim that trial counsel rendered ineffective assistance because he failed to call defendant's mother as a witness during the Miranda hearing. According to defendant, had she been called, his mother would have testified that she was high on drugs while the police were questioning her son, and therefore she was unable to provide him with the guidance, advice and support that State v. Presha, 163 N.J. 304, 314-15 (2000), requires.
The judge rejected that claim. He observed that defendant's depiction of his mother as detached and non-responsive because she was high, was in direct conflict with the testimony at the Miranda hearing from Investigator John Greer, a twenty-one year veteran of law enforcement, whose testimony the judge found credible and accepted. At the Miranda hearing, Greer testified he was present with defendant's mother throughout the entire interview, and described her as "cooperative and apparently healthy," noting that she did not appear to be "intoxicated by alcohol or drugs during the interview." Greer also maintained that defendant's mother "appear[ed] to understand [defendant's] rights and had no difficulty comprehending the English language." Greer described her speech as "coherent." He explained that neither she nor defendant ever asked for an attorney to represent defendant, nor did she ever direct her son not to answer any questions and, indeed, "she appear[ed] to freely and voluntarily assent to [Greer] questioning her son."
Judge Natal also noted that prior to the Miranda hearing, he had reviewed the tape recording of defendant's statement to Investigator Greer and was able to determine from the recording that defendant's mother was present during the questioning and in fact participated in the interview.
For all of those reasons, the judge found that defendant's claims respecting his mother's alleged incapacity during his interview and statement to police were belied by the record. The judge also noted defendant had failed to submit any proofs explaining how his mother's drug use caused her to be incapable of providing him with guidance while he was being interviewed. The judge concluded defendant had failed to establish a prima facie case in connection with trial counsel's failure to call defendant's mother at the Miranda hearing.
Fifth, the judge addressed defendant's claim that trial counsel rendered ineffective assistance because counsel had not presented a defense. The judge rejected that claim, reasoning that trial counsel's cross-examination and closing arguments reflected a coherent and well-executed strategy of challenging the credibility of each of the State's principal witnesses. We will not burden the record with a detailed discussion of the judge's description of that cross-examination. Suffice it to say, Judge Natal discussed in considerable detail trial counsel's cross-examination of four of the State's witnesses and referenced the cross-examination of five others. The judge also noted that defense counsel presented a coherent attack on the reliability of defendant's statement to police by presenting the testimony of defendant and of his mother that defendant only provided an incriminating statement because the police would not let his mother leave until he did so.
The judge also observed that defendant had not submitted any affidavits, or presented any arguments, describing which other witnesses defense counsel should have called at trial, or describing what other questions his attorney should have asked. Consequently, the judge concluded that because trial counsel had presented a coherent defense challenging the credibility of the State's witnesses, and defendant had provided nothing to demonstrate the additional defenses or proofs that counsel should have pursued, defendant had failed to establish a prima facie claim of defense counsel's failure to pursue a coherent defense strategy.
Having concluded that none of defendant's five arguments was meritorious, the judge denied the PCR petition in its entirety without a hearing.
On appeal, defendant raises the following claims:
I. THE COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING ON HIS PCR PETITION.
II. MR. SALAS' PETITION FOR POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED.
III. PETITIONER WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
A. Requirement of Counsel to Make Reasonable Investigations.
B. Failure to Present a Meaningful Trial Strategy.
C. Failure Adequately to Consult with Petitioner and Resolve Conflicts.
D. Failure of Counsel to Adequately Present the Miranda Issues.
E. Petitioner was Denied his Right to the Effectiveness of Appellate Counsel.
F. Petitioner was Denied his Right to the Effectiveness of Post-Conviction Relief Counsel.
IV. PETITIONER'S STATEMENT TO POLICE WAS TAKEN IN VIOLATION OF HIS RIGHTS AGAINST SELF-INCRIMINATION AND RIGHTS AFFORDED JUVENILES AND SHOULD HAVE BEEN SUPPRESSED.
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d. 674, 693 (1984). 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.
We consider Points I, II and III jointly, with the exception of III(F), which we will discuss separately. Having thoroughly considered defendant's arguments in light of the record and applicable law, we conclude defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Natal in his comprehensive and well-reasoned oral opinion of January 30, 2009.
In Point III(F), defendant maintains PCR counsel rendered ineffective assistance because he was unprepared for the hearing and had not conducted an adequate investigation. Although Judge Natal considered, and rejected, PCR counsel's request for an adjournment, and entertained defendant's complaint that he and PCR counsel did not see eye to eye, and that PCR counsel had not obtained all documents that were pertinent, no claim of ineffective assistance of PCR counsel was presented or adjudicated.
We nonetheless consider this claim, and conclude it lacks merit. Defendant has failed to offer more than general assertions. He has presented no facts or supporting affidavits to demonstrate the precise omissions of PCR counsel, nor how those omissions would have altered the outcome. Thus, he does not satisfy either prong of the Strickland test. We therefore reject the claim defendant had advanced in Point III(F).
We turn to Point IV. Unlike the arguments advanced in Points I, II and III, which depend on matters not contained in the trial record, the claim advanced in Point IV could have been raised on direct appeal. Defendant asserts in Point IV that the judge erred at the Miranda hearing by refusing to suppress the statement defendant made to police. This argument should have been raised on direct appeal. Because it was not, it is procedurally barred by Rule 3:22-4(a).
For the sake of complete appellate review, we nonetheless exercise our discretion to decide this claim on the merits. As is evident from the record of the Miranda hearing, Judge Natal thoroughly reviewed the evidence presented, made detailed credibility findings, and provided sound reasons for concluding the State had proved beyond a reasonable doubt that defendant's statement to police was provided with a knowing and voluntary waiver of his right to remain silent.
Defendant now maintains the statement should have been suppressed because no attorney was present with defendant when he gave his statement. The record demonstrates, and Judge Natal found, that defendant was fully advised of his right to an attorney and knowingly and voluntarily chose to waive that right. Nothing presented by defendant causes us to question the soundness of the ruling Judge Natal made when he denied defendant's motion to suppress his statement. We thus reject the claim defendant advances in Point IV.