June 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANKY MUNIZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-04-0540.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2011 Before Judges Baxter and Koblitz.
Defendant Franky Muniz appeals from an October 3, 2008 Law Division order denying his petition for post-conviction relief (PCR). He is serving an extended-term sentence of life imprisonment with a twenty-five year period of parole ineligibility following his conviction on the first-degree crime of being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. The judge sentenced him to a consecutive life term, also with a twenty-five year parole ineligibility period, on a charge of first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5. This was also an extended-term sentence. In an unpublished opinion, we affirmed defendant's conviction but remanded for reconsideration of the sentences imposed to enable the judge to explain his reasons for imposing a discretionary extended term sentence and a consecutive sentence. State v. Muniz, No. A-6630-03 (App. Div. December 18, 2006) (slip op. at 6). The Supreme Court denied certification. State v. Muniz, 191 N.J. 316 (2007). Following our remand, the Law Division imposed the same sentence it had originally imposed. Defendant did not appeal the resentence.
On appeal from the denial of PCR, defendant raises the following claims:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL FREE FROM INCOMPLETE AND INADEQUATE JURY INSTRUCTIONS; FREE FROM A MISAPPLICATION OF THE "OPENING THE DOOR" DOCTRINE; AND FREE FROM A PREJUDICIAL OPINION OF A NON-EXPERT; WAS VIOLATED.
II. SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
III. THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
(A) Petitioner's Attorney Rendered Ineffective Assistance of Counsel by Failing to File a Motion to Suppress Regarding Lack of Scientific Testing of the Evidence. The Evidence was Insufficient to Support a Conviction Depriving Defendant of His Federal and State Constitutional Rights. The Verdict was Against the Weight of the Evidence, Therefore a New Trial Must be Granted.
(B) The Defendant's Sentence is Excessive.
(C) Petitioner's Attorney Rendered Ineffective Assistance of Counsel by Failing to Subpoena a Drug Expert Witness.
(D) Petitioner's Claims are Not Procedurally Barred.
(E) Petitioner's Attorney Rendered Ineffective Assistance of Counsel by Failing to Move For a State v. Driver[, 38 N.J. 255, 287-88 (1962),] hearing.
IV. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We reject these arguments and affirm.
At defendant's trial, which commenced on March 3, 2004, the State's case against defendant was presented through the testimony of four co-defendants, Elvin Gonzalez, Otho Kelly, Latasha Chaneyfield and Ramon Duarte, all of whom acknowledged that they had entered into plea agreements with the State under which they agreed to testify against defendant in exchange for favorable sentence recommendations. The State also introduced testimony from a number of intercepted telephone conversations between defendant and his co-defendants, in which defendant is heard discussing the price at which he would sell quantities of cocaine.
Lakewood police also maintained visual surveillance of defendant's apartment, and observed Duarte leaving defendant's apartment carrying a Timberland bag that police believed contained a large quantity of cocaine. After effectuating a motor vehicle stop, the police removed Duarte from the vehicle and seized the Timberland bag, in which they found a shoe boX containing a digital scale and more than twelve ounces of cocaine. Defendant was not in the car. Defendant called no witnesses and did not testify on his own behalf.
On direct appeal, we rejected defendant's contention that the denial of his motion to suppress the evidence found during the car stop was error; that the trial judge erred in refusing to charge "mere presence" as part of the conspiracy charge; and that the absence of a limiting instruction concerning the guilty pleas entered by his co-defendants and alleged accomplices denied him a fair trial. State v. Muniz, supra, slip op. at 3.
To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Fritz, supra, 105 N.J. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
The Supreme Court of New Jersey has recognized that "'[j]udicial scrutiny of counsel's performance must be highly deferential' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, an attorney's strategy decision should not be characterized as ineffective assistance merely because the decision did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's strategy decisions were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.
We begin with Point I, in which defendant complains that a number of trial errors denied him a fair trial. These included the judge's refusal to bar the testimony of Trooper Roberto Guerrero on re-direct examination that based upon the "drug vernacular" and language used during the intercepted telephone conversations, it was his opinion that defendant was "talking about a drug, narcotics transaction."*fn1 In Point I, defendant further maintains that his right to a fair trial was violated because of the judge's "inadequate jury instructions" on the jury's evaluation of the testimony of co-defendants, and the judge's refusal to charge "mere presence" at the scene in connection with the conspiracy count.
Addressing these three claims sequentially, we conclude that all three are procedurally barred, although for different reasons. Defendant's claim that the trial judge erred when he concluded that defendant "opened the door" to the re-direct testimony of Guerrero could have been raised on direct appeal, but was not. It is now procedurally barred. R. 3:22-4 (stating that any ground for relief not raised on direct appeal is barred from assertion in a PCR proceeding unless the ground for relief could not reasonably have been raised on direct appeal, the enforcement of the procedural bar would result in fundamental injustice, or the denial of relief would be contrary to the Constitution of the United States or the State of New Jersey).
We find none of the exceptions to that Rule to be applicable here. Defendant's claim also lacks substantive merit, as we agree with the judge's conclusion that by asking Guerrero whether he had ever heard the words "drugs" "cocaine" "drug dealer" or "drug dealing" in any of the three intercepted conversations, defendant "opened the door" to the question the prosecutor asked Guerrero on re-direct examination.
As we have noted, defendant also maintains in Point I that he was denied a fair trial when the judge failed to instruct the jury that the guilt of a co-defendant cannot be used as substantive evidence of a defendant's guilt. See State v. Stefanelli, 78 N.J. 418, 435 (1979). We note that defendant did not ask the judge to issue such an instruction. Nonetheless, defendant claims that he is now entitled to relief because the judge failed to sua sponte so instruct the jury. As we noted on direct appeal, the judge instructed the jury that in evaluating the credibility of the cooperating witnesses, the jury was entitled to consider that a person who has previously failed to comply with society's rules, "as demonstrated through [a] criminal conviction, would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of a crime." State v. Muniz, supra, slip op. at 5-6.*fn2
On direct appeal, defendant raised this identical claim. We rejected it, stating:
Given the overwhelming evidence of defendant's guilt beyond that offered through showings of the guilty pleas of the co-conspirators and others charged, we discern no likelihood that a fuller instruction . . . would have resulted in a different verdict. [Ibid.]
Thus, this argument was raised on direct appeal, and rejected. It is therefore procedurally barred by Rule 3:22-5.
The final claim defendant advances in Point I is that he was denied a fair trial when the judge refused to instruct the jury that defendant's "mere presence" at the scene was not sufficient to establish his guilt on the conspiracy element of the charge of being a leader of a narcotics trafficking network. On direct appeal, we rejected that claim, reasoning that because defendant "was not charged as an accomplice but rather as a principal in the drug trafficking enterprise[,]" the absence of a "mere presence" instruction had no capacity to lead to an unjust result. Id. at 5. As with defendant's argument concerning the judge failing to sua sponte issue an instruction on the jury's responsibility to evaluate the testimony of a cooperating co-defendant with special scrutiny, this claim too is barred by Rule 3:22-5, as it was raised, and rejected on direct appeal. The argument also lacks substantive merit.
We thus reject all of the claims defendant advances in Point I.
We turn to Point II, in which defendant asserts that he established a prima facie case of trial counsel having rendered ineffective assistance, and therefore the judge erred when he rejected this claim without conducting an evidentiary hearing. In particular, defendant argues that trial counsel was ineffective because he failed to "provide guidance and advise [him] of all matters relevant to [his] case"; failed to provide "all of the discovery"; failed to adequately meet with him prior to trial; failed to present "a coherent defense plan"; failed to "investigate all possible defenses"; failed to render reasonable advice concerning the plea offer; and misinformed him about the potential penal consequences of going to trial.
Defendant argues that these issues were not properly addressed by the PCR judge, because of the judge's alleged reliance on the "overwhelming" evidence presented by the State.
The record demonstrates otherwise. The judge analyzed each of these assertions, pointing to relevant material, such as discussions between the judge, defense counsel and defendant at various pretrial conferences*fn3 or, in some instances, the unsubstantiated nature of defendant's arguments. The judge did, however, substantively address each of defendant's claims and found that defendant had provided no facts in support of any of them.
On appeal, defendant repeats the same litany of complaints about trial counsel that he raised in the Law Division, but fails to support any of them with references to the record. A defendant must do more than make broad assertions as to counsel's ineffectiveness. He must provide citations to the record and must discuss the particular items that counsel failed to investigate, failed to discuss with him or failed to consider in his overall trial strategy. Conclusory assertions, without more, are insufficient, and must be rejected. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We thus reject the claims defendant advances in Point II.
In Point III, pursuant to State v. Webster, 187 N.J. 254, 257 (2006), defendant reasserts all of the other issues raised in his pro se PCR petition or by PCR counsel in his brief. There are five such claims. The first is defendant's claim that trial counsel rendered ineffective assistance by failing to move for the suppression of the cocaine on the grounds that the State never submitted the packages of cocaine for fingerprint testing, quantity testing or "trace test[ing]." These issues have no bearing on a Fourth Amendment violation of a defendant's right to be free from unreasonable searches and seizures.
Instead, the issues of "trace test[ing]" and fingerprint testing were a proper subject for cross-examination, which trial counsel vigorously pursued. As for defendant's claim that the State never established the weight of the cocaine, the record demonstrates otherwise. Daniel Barrett, a senior forensic scientist with the Ocean County Sheriff's Department, testified that he examined the specimens that were submitted, and determined that they weighed a total of 351.5 grams, or 12.39 ounces. Although Barrett did not differentiate between the weight of the crack cocaine and the powder cocaine, defendant has not explained why this would have made a difference. This claim is therefore lacking in merit and we reject it.
In Point III.B, defendant argues that his sentence was excessive. As we have already noted, we remanded for resentencing and defendant did not appeal from the sentence imposed. We will therefore not address this claim further.
In Point III.C, defendant maintains that trial counsel rendered ineffective assistance by failing to subpoena an expert witness in the field of drug distribution. As we observed in Cummings, supra, 321 N.J. Super. at 170, a defendant must do more than make a bald assertion that counsel rendered ineffective assistance by failing to call a particular witness. Defendant must also submit an affidavit, or in this case an expert report, from the proposed witness attesting to what the witness would have said had he or she been called to testify. Ibid. Defendant has not done so. We therefore will not entertain this claim any further.
In Point III.D, defendant asserts that his claims are not procedurally barred. We have already addressed this issue, and have determined it lacks merit. R. 2:11-3(e)(2).
In Point III.E, defendant maintains that trial counsel rendered ineffective assistance by failing to move for a State v. Driver, 38 N.J. 255 (1962), hearing. Defendant has failed to explain, in either his brief on appeal, or in the brief he submitted to the PCR judge, what issues trial counsel should have asserted had a Driver hearing been requested. This claim therefore lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).