October 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL VASQUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-04-0568.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2012
Before Judges Fisher and St. John.
Defendant appeals the denial of his post-conviction relief (PCR) petition. We affirm in part and remand in part. At the conclusion of a trial in 2004, defendant was convicted of: second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(2); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). After the merger of the aggravated assault convictions, defendant was sentenced to a seven-year prison term, subject to an eighty-five percent period of parole ineligibility. The judge also imposed four-year prison terms on the endangering and weapon convictions that were ordered to run concurrently to each other and concurrently to the prison term imposed on the aggravated assault conviction. In his direct appeal, defendant argued that the trial judge erroneously found that the assault victim was competent to testify and provide information regarding an element of second- degree aggravated assault and, also, that the judge's findings regarding aggravating and mitigating circumstances were unsupported by the record. We rejected these arguments and affirmed. State v. Avilez-Vasquez, No. A-4505-04 (App. Div. Apr. 13, 2007).*fn1 The Supreme Court denied defendant's petition for certification. 192 N.J. 477 (2007).
In 2008, defendant filed a pro se PCR petition, which was later amended upon the appointment of counsel. Defendant argued to the trial court*fn2 that his trial attorney was ineffective: (1) in failing to call co-defendant Emilio Hernandez to testify; (2) in failing to seek a mistrial or other relief when the victim's mother blurted out in Spanish during trial that "this guy killed my son"; (3) in failing to retain medical experts to opine on the victim's competency to testify; and (4) in representing defendant when counsel also represented the mother of defendant's child in a custody dispute while defendant was awaiting trial on these charges. Additionally, defendant argued in the trial court that the attorney who represented him in his direct appeal was ineffective in failing to raise issues concerning both the outburst of the victim's mother and the judge's response to a jury question that, in defendant's view, "overemphasized" the meaning of attempt.*fn3
After oral argument, the trial judge ruled on some of defendant's contentions but, as to two -- the circumstances surrounding counsel's failure to call Emilio Hernandez to testify and trial counsel's purported representation of the mother of defendant's child in a custody matter -- the judge soundly determined that an evidentiary hearing was required to develop the record. At the conclusion of the two-day evidentiary hearing, the judge rejected defendant's ineffective- assistance-of-counsel argument regarding the failure to call Emilio Hernandez as a witness; he did not, however, rule on the conflict issue.
In appealing the denial of his PCR petition, defendant first argues:
THE TRIAL COURT COMMITTED ERROR IN FAILING TO ADDRESS OR RULE ON THE ISSUE OF A CONFLICT OF INTEREST.
We agree that the trial judge mistakenly overlooked the conflict issue. As a result, we must remand for the judge's findings and ruling.
The PCR proceedings mainly focused on defendant's failure to call Emilio Hernandez as a witness. Defendant claims that this failure and other related circumstances deprived him of the effective assistance of counsel under the following second point of his brief:
THE LOWER COURT ERRED AND MIS-APPLIED ITS DISCRETION IN CONCLUDING THAT THE DEFENDANT'S TRIAL ATTORNEY WAS NOT INEFFECTIVE FOR FAILING TO CALL THE CO-DEFENDANT AS A WITNESS.
We find insufficient merit in this argument to warrant discussion in a written opinion, R. 2:11-3(e)(2), adding only the following comments, prefaced first by a short summary of the evidence adduced at trial.
As explained in our opinion regarding defendant's direct appeal, testimony established that Jose Hernandez and Claribel Hernandez, who were dating, had an argument on February 2, 2003, during which Jose assaulted Claribel and pulled her down the steps of her home by her hair. Avilez-Vasquez, supra, slip op. at 3-4. Claribel escaped and later enlisted her brother Emilio Hernandez and their cousin, defendant, to go with her to a particular location in Perth Amboy, where they found Jose standing on a street corner. Id. at 4. While defendant and Emilio hid, Claribel approached Jose and hugged him, acting as if nothing was amiss between them. Ibid. Claribel, however, gave a signal, and Emilio and defendant emerg[ed] from the darkness. Emilio struck [Jose] in the head with a baseball bat, and defendant struck him with a golf club. The three then fled, but as Claribel ran from the scene, she turned back and observed [Jose] still lying on the ground with his head bloodied.
[Id. at 5]
All three were later arrested and subsequently indicted.
Defendant argued in his PCR petition that his trial attorney failed to call Emilio Hernandez as a witness. Although Emilio was under indictment for the same incident, defendant asserted that Emilio was willing to testify on defendant's behalf. Emilio, Emilio's trial attorney, defendant and defendant's trial attorney testified at the PCR hearing over the course of two days in July 2009. The judge determined on September 11, 2009, by way of a thorough oral decision, that defendant was not entitled to relief. After accurately describing the legal principles applicable to an ineffective- assistance-of-counsel argument, the judge made the following findings:
At the evidentiary hearing in the matter[,] . . . Emilio Hernandez testified he alone struck the victim, that the defendant merely swung the golf club to scare him. [Emilio] testified no one attempted to contact him to solicit his testimony on behalf of the defendant and that if he had been asked he would have in fact testified. [Emilio]'s attorney testified that had he been asked he would have cautioned his client against testifying on defendant's behalf but would have permitted the testimony. Defendant's trial attorney testified. He didn't remember the specifics of the trial that took place five years ago. He believes that his decisions were based on sound trial strategy. And defendant testified that he met with his trial attorney one time before trial. It is not believed that the attorney conducted any investigation of the facts or circumstances of this case. Defendant further testified he instructed his attorney to call [Emilio] to testify but that the attorney failed to do so.
Defense argues that the defendant's trial attorney failed to investigate the case and that his decision not to call [Emilio] as a witness was based on the general belief that . . . co-defendants are poor witnesses and not the specific case or rather than the facts specific to this case.
Defense also claims the jury struggled with the defendant's culpability as evidenced by their questioning the [c]court about accomplice liability and serious versus significant bodily injury. And the defense points out that the closing argument of defense counsel as evidence that he acted unreasonably and left the defendant's fate up to the jury's interpretation of the video. It should be noted this [c]court happened to be the trial court in this matter and watched that video which i[n] the
[c]court's recollection [was] very demonstrative and very clear and while it did not show the actual hitting of the club of this defendant on the brain of the victim it did show the swing, so that even if he was swinging to miss or swinging close to, the jury saw very clear demonstrative evidence of what could very well be found to be an attempt if not a striking.
Prosecutor contends the decision not to call [Emilio] to testify on defendant's behalf was a reasonable trial strategy given that credibility could easily be challenged as [Emilio] is an interested party, defendant's cousin, as his testimony . . . would have to contradict the actual tape, that he was a convicted felon, and the prosecutor further argues that even if he had testified the results from the trial wouldn't have been exactly the same because the testimony he was giving was in no way different than what the tape showed.
Given the testimony of the defendant and his counsel and facts presented to this [c]court, this [c]court does not find that the Strickland test has in fact been met. To satisfy the first prong defendant must show that a failure to call or seek out [Emilio] as a potential witness was unreasonable. The proper inquiry to be made by the [c]court is whether counsel's decision was reasonable considering all the circumstances. In this case given [Emilio's] apparent lack of credibility, his record, [and] his relationship to the defendant, the decision not to call this witness was reasonable.
Further, even if trial counsel's decision was found to be unreasonable the defendant cannot meet the second prong of Strickland. Defendant must show by a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Under the Strickland circumstances of this case [Emilio]'s testimony would not have in the [c]court's mind changed the outcome of the proceeding. The defendant testified on his behalf, provided the jury with a similar version of events that [Emilio] claims he would have given to the jury. Testimony of [Emilio], therefore, would have been the same and would have only bolstered the defendant's testimony and would have not given the jury any additional new information and the jury still would have to consider the video as evidence against the defendant. Additionally, it is clear that even if it had any impact on the defendant the defendant still would have been convicted of accomplice liability as both parties indicated that the attack occurred and that they acted in concert.
We reject defendant's argument that the judge erred in denying relief. The judge applied correct legal principles and his findings, which support his ultimate conclusions, are anchored to the evidence adduced at the hearing and, therefore, are entitled to our deference. See, e.g., State v. Locurto, 157 N.J. 463, 470-71 (1999).
In his third and last point, defendant argues:
THE COURT MISAPPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM, BY THE U.S. CONST., AMENDS. VI,, XIV; N.J. CONST. ART. I, PAR. 10.
Although defendant generally alludes to all his arguments in the trial court in this point, he specifically addresses only two: the judge's denial of relief with regard to the statement blurted out by the victim's mother during trial, and trial counsel's failure to "retain an expert witness to challenge the assertion of serious bodily injury."
In rejecting the first of these two contentions, the trial judge referred to the fact that only one juror understood Spanish and that he promptly instructed the jurors, to the extent they may have heard and understood what the victim's mother had said, to disregard it. Relying on the principle that jurors are presumed to follow legal instructions, see, e.g., State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom., Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), the trial judge concluded that the event caused no prejudice to defendants. We defer to the judge's findings, which were augmented by his familiarity with the trial proceedings, in rejecting defendant's argument. See State v. Wakefield, 190 N.J. 397, 486 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
We find that the second and last aspect of defendant's Point III -- trial counsel's failure to retain an expert regarding serious bodily injury -- to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed in part; remanded in part. The judge must render his findings on the conflict issue within thirty days. We retain jurisdiction.