August 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDGAR PICHARDO. DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1124.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2012
Before Judges Espinosa and Kennedy.
Defendant Edgar Pichardo appeals from the July 21, 2009 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. Tried to a jury in May 2005, defendant was convicted of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a; unlawful possession of a weapon, a rifle, in violation of N.J.S.A. 2C:39-5c(1); and receiving stolen property, in violation of N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2a. On September 30, 2005, after merging the weapons offense into the aggravated manslaughter charge, the trial judge sentenced defendant to a term of twenty-two years in prison, subject to an eighty-five percent period of parole ineligibility, on the aggravated manslaughter conviction. Defendant was also sentenced to four years imprisonment on the receiving stolen property charge, to run consecutive to the aggravated manslaughter sentence.
We affirmed defendant's conviction and sentence, State v. Pichardo, No. A-1603-05 (App. Div. March 10, 2008), and the Supreme Court denied defendant's petition for certification. State v. Pichardo, 195 N.J. 524 (2008). In June 2008, defendant filed a pro se PCR petition and counsel was assigned to represent him. After an evidentiary hearing, the motion judge denied the petition on July 21, 2009. This appeal followed.
In the brief filed by his counsel, defendant argues:
APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO RAISE THAT THE TRIAL COURT ERRED IN DENYING MR. PICHARDO'S THREE MOTIONS TO SUPPRESS AND TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO INVESTIGATE AND COMMUNICATE WITH HIS CLIENT
A. Motion to Suppress Identification - Appellate Counsel
B. Motion to Suppress Statement - Appellate Counsel
C. Motion to Suppress Evidence - Appellate Counsel
D. Investigate and Consult with Client -Trial Counsel
In a supplemental pro se brief, defendant further argues:
a. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO RAISE THAT THE TRIAL JUDGE DOUBLE COUNTED AGGRAVATING FACTOR NUMBER 1 IN SENTENCING THE DEFENDANT ON COUNTS 1 AND 3 AND IMPROPERLY APPLIED MITIGATING FACTORS, TRIAL COUNSEL FAILED TO ARGUE MITIGATING FACTORS IN FAVOR OF THE DEFENDANT.
b. COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO RAISE THAT THE SENTENCING JUDGE RELIED ON UNSUPPORTED FACTS IN FINDING AGGRAVATING FACTORS NOT IN ACCORDANCE WITH BLAKELY V. WASHINGTON, [542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)]
c. COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO RAISE THAT TRIAL JUDGE ERRED IN NOT CHARGING THE JURY IN ACCORDANCE WITH [STATE V.]HAMPTON, [61 N.J. 250 (1972)] AND [STATE V.]KOCIOLEK, [23 N.J. 400 (1957)].
d. COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO RAISE THAT TRIAL COUNSEL FAILED TO BRING FORTH IMPEACHMENT TESTIMONY FROM A SUPPRESSION OF EVIDENCE HEARING (NOT RAISED BELOW).
e. COUNSEL WAS INEFFECTIVE FOR FAILURE TO CALL PERTINENT WITNESSES TO TESTIFY WHERE WITNESSES WERE CRITICAL IN THE DEFENDANT'S SELF DEFENSE CLAIM.
f. COUNSEL WAS INEFFECTIVE FOR FAILURE TO RAISE THAT TRIAL JUDGE ERRED IN ALLOWING THE OWNER OF THE RIFLE TO TESTIFY AS TO THE OPERABILITY OF THE SCOPE.
g. COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO RAISE THAT THE TRIAL JUDGE ERRED IN ALLOWING A BATTERY TO PLACE [SIC] IN THE SCOPE AND PRESENT IT TO THE JURY WHEN THE SCOPE WAS NOT WORKING ON THE NIGHT IN QUESTION OR WHEN IT WAS TESTED BY THE STATE.
h. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR NOT RAISING ON APPEAL THAT THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL JUDGE DID NOT RECUSE HIMSELF AFTER SEXUAL HARASSMENT CHAGES WERE FILED AGAINST HIM BY A COURTHOUSE EMPLOYEE.
We reject these arguments and affirm.
We set forth at length the facts developed at trial as recited in our prior opinion:
On August 27, 2003, Ashley York gave a party in the basement of her Hawthorne home to celebrate the seventeenth birthday of her boyfriend, Richard Vacca. At approximately 11:30 p.m., Vacca had a dispute at the party with someone known as "Chino," which resulted in Chino grabbing Vacca by the throat. Chino and his girlfriend, Tina Morano, left the party soon thereafter.
At 1:00 a.m., when only Vacca, York and Richard Allison were in the basement, Chino and his girlfriend entered with two others, one of whom asked Vacca if he had "disrespected" his cousin. When Vacca denied this, this unidentified man punched Vacca, knocking him to the floor; between five and eight other men then entered the basement and began throwing bottles and stomping on the prone Vacca. Allison was also severely beaten in this melee. York's threat to call the police prompted the assailants to flee. York then took Allison to the hospital because he was drifting in and out of consciousness.
Vacca called his cousin, Darryl Jackson, who arrived to pick up Vacca a short time later. While driving toward an area in Paterson where Chino was known to hang out, Jackson called other friends -- Anthony Gray and Ejustic Watkins -- who followed in a separate car (the Gray vehicle) to River Street in Paterson.
As Jackson and Vacca drove down River Street, they saw a group of approximately fifteen people standing in front of the building in which defendant lived. Jackson and Vacca told the group they were looking for "a short Puerto Rican kid with a mushroom haircut," which was their description for Chino. After a brief conversation, the two vehicles drove further down River Street, made u-turns, and proceeded again past defendant's building. As the Gray vehicle passed by, an individual in a red t-shirt, later identified as defendant, threw a cup at the car. An argument ensued, but a nearby police officer directed the pedestrians to go inside and the vehicles to move along.
Later, the vehicles again drove by defendant's building. This time, as the Gray vehicle drove past, defendant stepped out from behind a parked car, raised a rifle to his shoulder, looked through the rifle's infrared scope, and fired two shots through the rear windshield of Gray's car. One shot struck Ejustic Watkins in the head; he later died.
Based on Jackson's identification, defendant was arrested and transported to police headquarters, where he was advised of, and waived, his Miranda*fn1 rights. Defendant at first denied involvement, but then acknowledged he had been with Chino when he returned to the party in Hawthorne. He also denied being involved in the fight in the basement, but ultimately conceded he fired a weapon at the Gray vehicle, stating: "Then I went home and the other guys told me that some guys were looking for me. I went upstairs and got the gun. Then I went back downstairs and as soon as I walked out I saw the car coming around. I went behind the car and shot at it two times. After that, I went upstairs and I lay in bed and I put the gun under some clothes. After that I was watching T.V. for about 20 minutes that is when the cops arrived at my house."
The police also asked defendant about the weapon he had fired at Gray's car. He described it as a black rifle with an infrared scope that he bought from "a white guy" for a "hundred bucks." In fact, the weapon had been stolen from its owner's home in August 2003.
Defendant was indicted and charged with: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 and 2C:20-2(a).
At the conclusion of a trial, defendant was acquitted of murder but convicted of the lesser-included offense of aggravated manslaughter. He was also acquitted of possession of a weapon for an unlawful purpose but convicted of the other charged offenses. At sentencing, following the merger of the weapon and aggravated manslaughter convictions, defendant was sentenced to a twenty-two year prison term, with an 85% period of parole ineligibility.
He was also sentenced to a consecutive four-year term on the stolen property conviction. [slip op. pp. 1 - 4]
On direct appeal, defendant argued that the trial court erred in failing to enter a judgment of acquittal on the original charge of murder, in violation of N.J.S.A. 2C:11-3a(1),(2), set forth in count one of the indictment, thereby "tainting" the verdict on the lesser included offense of aggravated manslaughter. Defendant also claimed the verdict was excessive. We rejected each of these arguments.
In this appeal, defendant asserts that his appellate counsel was ineffective because counsel did not challenge on appeal the denial of his motions to suppress identification testimony, his statement to police and the rifle obtained during a consent search of the apartment where he lived with his parents. He also claims his trial counsel was ineffective for failing to "investigate witnesses" and "to review discovery" with defendant.
In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); see also State v. Fritz, 105 N.J. 42 (1987).
In addition to claims of ineffectiveness based on trial counsel's representation, a petitioner also may have a claim for ineffective assistance of appellate counsel when, as defendant claims here, errors existed at the trial level that could have been ascertained by appellate counsel's review of the record but were never raised as issues on appeal. See State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on ineffective assistance of appellate counsel, the petitioner must establish that counsel failed to raise an issue that would have constituted reversible error on direct appeal. Id. at 361. Appellate counsel will not be found ineffective if counsel's failure to appeal the issue could not have prejudiced the petitioner because the appellate court would have found, either, that no error had occurred or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); State v. Harris, 181 N.J. 391, 499 (2004), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Defendant first asserts that the trial judge should have suppressed Jackson's identification of defendant as the shooter at the scene approximately an hour after the actual shooting. Defendant claims the show-up at the scene was suggestive because defendant at the time was "flanked by a uniformed police officer" and only identified defendant as the shooter after he saw defendant with a "red shirt."
Defendant's motion to suppress the identification testimony was denied after a two day evidentiary hearing at which seven witnesses testified. We discern no error in the trial judge's detailed findings of fact and conclusions of law and determine that defendant's arguments do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We note only that our Supreme Court has recognized "one-on-one show-ups are inherently suggestive." State v. Herrera, 187 N.J. 493, 504 (2006).
Nevertheless, "standing alone a show-up is not so impermissibly suggestive to warrant proceeding to the second step" of the analysis. Ibid. This is because on or near-the-scene identifications "'are likely to be accurate, taking place, as they do, before memory has faded [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" Ibid. (quoting State v. Wilkerson, 60 N.J. 452, 461 (1972)). In fact, "[f]ar from being conducive to misidentification, confrontation immediately after a crime promotes fairness to the accused by allowing a viewing while the witness's mental image of the perpetrator is still fresh." State v. Carter, 91 N.J. 86, 130 (1982) (citations omitted).
Further, defendant claims that appellate counsel was ineffective for failing to challenge on appeal the trial court's determination that he voluntarily, knowingly and intelligently waived his rights under Miranda, supra, when he gave a statement to police. We reject this argument. Again, following a hearing under N.J.R.E. 104, the trial judge found that defendant was read his Miranda rights, signed the waiver form and then gave a statement which was reduced to writing. Defendant read and signed the statement. Under these circumstances, the fact that defendant was not told that an individual in the car died of a gunshot wound is of no moment and does not alter the knowing and voluntary nature of defendant's waiver and statement.
Next, defendant faults appellate counsel for failing to challenge the search of the premises which resulted in the discovery of the rifle and which was conducted with the signed consent of defendant's mother. Defendant claims that his "mother's consent was not voluntarily given, and that she merely acquiesced to the officers' demands in a state of panic." The trial judge found that the officers were credible and that defendant's mother was advised both in English and Spanish about the terms of the "consent to search" form which she signed. She was concerned, as were the police, that there was a weapon in the home with other young children and she wanted it to be removed. The trial judge also found that defendant's mother was advised of her right to refuse consent to search and that her later claims of threats and intimidation were not credible. We defer to the trial judge's credibility findings, and we reject this claim.
Lastly, defendant claims his trial counsel was ineffective because he "failed to investigate witnesses" or to "review discovery with him." Defendant, however, fails to support these claims with anything other than mere unsubstantiated assertions. A defendant's "bald assertions" that counsel was ineffective will not sufficiently satisfy defendant's prima facie burden; the defendant must allege specific facts demonstrating the deficient performance. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
More importantly, defendant conceded during the evidentiary hearing on his PCR application that defense counsel had, in fact, provided him with all the discovery prior to trial and that he had read through all the discovery at least "once or twice." Also, defendant claimed he had one witness who would testify that he, not defendant, had thrown the cup at the car. Defense counsel testified at the evidentiary hearing that he tried to locate this witness prior to trial but was unable to do so. Even if this witness had been located, however, and testified as defendant claimed he would have, the witness's testimony was of marginal significance, at best.
Defendant also claims he had a witness who could testify that the victim had a gun at the time of the shooting. However, defense counsel explained at the evidentiary hearing that he did locate this witness before trial and the witness was unable to state he saw the victim with a gun. Hence, defense counsel did not call him as a witness.
Accordingly, defendant's claims of ineffective assistance of trial counsel fail to meet either prong of Strickland and consequently we reject this argument on appeal.
Finally, we determine that defendant's arguments in his supplemental brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).