January 7, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARIQ MAQBOOL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-03-0430.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
Before Judges Nugent and Haas.
Defendant Tariq Maqbool appeals from a November 4, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
Tried before a jury, defendant was convicted of two counts of first-degree murder, N.J.S.A. 2C:11-3a(1); two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3); two counts of first-degree kidnapping, N.J.S.A. 2C:13-1b; first-degree armed robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and conspiracy, N.J.S.A. 2C:5-2. During the penalty phase of the trial, the jury declined to find any aggravating factors, and the death penalty was not imposed.
Defendant was sentenced to two consecutive life terms on the two first-degree murder convictions; a concurrent thirty-year term on one of the first-degree kidnapping convictions; and a five-year concurrent term on the unlawful possession of a weapon charge. The remaining convictions were merged. With the exception of the sentence on the weapons conviction, the remaining sentences were subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal and raised the following arguments:
THE STATE'S FAILURE TO APPRISE THE DEFENDANT OF THE CRIMINAL COMPLAINT AGAINST HIM PRIOR TO THE QUESTIONING NECESSITATES SUPPRESSION OF HIS PURPORTED STATEMENTS. U.S. CONST., AMEND. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE DEFENDANT'S PURPORTED UNCOUNSELED STATEMENTS, NECESSITATING REVERSAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 1.
THE DEFENDANT WAS EFFECTIVELY DENIED HIS RIGHT TO A JURY TRIAL BY THE TRIAL COURT'S REPETITION, DURING ITS CHARGE TO THE JURY, OF HIGHLY PREJUDICIAL HEARSAY STATEMENTS MADE DURING TRIAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN PERMITTING ONLY A PARTIAL READBACK OF THE TESTIMONY OF A CRUCIAL WITNESS. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO DISALLOW THE TESTIMONY OF A STATE'S MEDICAL EXPERT.
THE DEFENDANT RECEIVED A MANIFESTLY EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. THE SENTENCES SHOULD RUN CONCURRENTLY.
B. THE BASE TERMS OF LIFE IMPOSED FOR MURDER ARE EXCESSIVE.
Defendant also raised the following arguments in a supplemental brief filed on his own behalf:
1) his custodial statements should have been suppressed because they followed his arrest which was obtained without a valid warrant;
2) he was denied effective assistance of counsel because counsel failed to move to suppress defendant's statements on the basis of his illegal arrest; 3) the trial judge erred by giving an incomplete and prejudicial instruction on reasonable doubt;
4) the trial judge failed to tailor his instructions as to the defense theory and failed to give examples during the instructions; 5) the trial judge failed to require the jury to be unanimous in its findings as to the underlying facts of the charges; 6) the trial judge erred by not charging the lesser-included offenses on the charge of murder of Muni Ahn; 7)the trial judge improperly shifted the burden of proof to the defendant, showing his disapproval of defendant's actions leading to the death of the victim; 8) the trial judge erred by failing to instruct the jurors that if some of them were to find defendant had acted purposely or knowingly and others were to find that defendant had acted recklessly it could have determined defendant guilty of aggravated manslaughter; 9) the instructions were prejudicial as to inferences the jury could draw from the use of a firearm; and 10) the instructions concerning use of circumstantial evidence [were] misleading and prejudicial. [State v. Maqbool, No. A-0407-05 (June 11, 2007) (slip op. at 7-8).]
We affirmed defendant's conviction and sentence in an unpublished opinion. Id. at 3. The Supreme Court denied defendant's petition for certification. State v. Maqbool, 192 N.J. 478 (2007).
On December 20, 2007, defendant filed a petition for PCR, but he subsequently withdrew it. He refiled his petition on October 26, 2009. On November 4, 2010, Judge Paul M. De Pascale, who had also presided over the trial, held oral argument, determined an evidentiary hearing was not required, and denied defendant's petition for PCR.
We begin by referencing the essential background facts as set forth in our earlier opinion. Joong Ahn (Joong) owned a cell phone business in Philadelphia with his wife, where they also sold prepaid calling cards. Maqbool, supra, slip op. at 3. Their nephew, Muni Ahn (Muni), also worked with them in the business. Ibid. Defendant, as well as co-defendants Paul Reid and Zaid Tariq, managed separate cell phone businesses and engaged in the sale of prepaid calling cards. Id. at 3-4. With the assistance of two other individuals, Jawad Mir and Amit Vishal, defendant arranged to sell Joong and Muni a large quantity of prepaid calling cards for $300,000 in cash. Id. at 4.
On October 31, 2002, Joong, Muni, Mir, and Vishal went to Paul Reid's store in Sayreville. Ibid. Joong was carrying the cash required to purchase the cards. After they arrived at the store, however, the four men were held at gunpoint by defendant, Tariq, Paul Reid, and the third co-defendant, Steven Reid. Ibid. They were ordered to the floor and, while they laid on their stomachs, defendant and the co-defendants kicked and punched them. Ibid. After taking the money that Joong had brought, defendant sat on Joong's back and strangled him with a wire. Ibid.
Defendant then took Mir and Vishal at gunpoint to the front of the store and told them that they had to shoot Muni if they wanted to live. Ibid. After they refused, the two men were put into the back seat of a car by Tariq and one of the Reid brothers. Ibid. The two co-defendants drove them around for about fifteen minutes, then stopped and switched cars, placing Mir and Vishal into a white SUV. Ibid. From there, they drove the men around again until they stopped near a police station. Ibid. After the car stopped, the other Reid brother ran over to the car and got in the back seat. Id. at 5. Defendant then entered the rear of the SUV, took a gun from the Reid brother in the back seat, and forced Mir and Vishal to handle it so that their fingerprints remained on the gun. Ibid. Defendant also threatened to kill Mir's family if he told anyone what had happened. Ibid. Defendants then took Mir and Vishal to a motel where they were given $10,000 each to remain silent. Ibid. At the motel, defendant told Mir and Vishal he had burned Joong and Muni's bodies in a car. Ibid.
In the interim, at approximately 1:30 a.m. on November 1, 2002, police and fire departments responded to a car fire in the parking lot of the Laidlaw Bus Company in Jersey City, across the street from the Hudson County Sheriff's Department. Ibid. The bodies of Joong and Muni were found in the burned SUV, which was later identified as Joong's vehicle. Ibid. Joong had to be identified through dental records, as he had been burned beyond recognition. Muni's arms were tied behind his back and he had been shot. Ibid.
An autopsy of Joong indicated his cause of death was asphyxia. Ibid. The State's medical expert concluded Muni's death was caused by blunt trauma to the head and brain, and smoke inhalation. Ibid. Unlike Joong, Muni was still alive when the car was burned. Ibid.
On November 3, 3002, defendant and Tariq were apprehended outside a store in Sayreville. Id. at 9. Detective Lieutenant Charles Russo read defendant his Miranda*fn1 rights at the scene and again at headquarters, where defendant agreed to give a statement. Id. at 10.
When asked how he had spent his Halloween, defendant told Detective Russo he had worked in his store, his girlfriend Maribel Aquino had arrived at the store at approximately 8:00 p.m., and Vishal and Mir had visited him at some time prior to 9:30 p.m. when he closed the store. Id. at 10-11. Defendant stated he took his girlfriend to get something to eat and they then went to the Gallery Motel where they spent the night. Ibid.
Detective Russo told defendant he was not telling the truth. Ibid. After a break, defendant gave a second statement, which he claimed was "the truth," that placed him at the scene of the crimes. Ibid. When Detective Sergeant Theodore Wagner brought in the bag of money that he had recovered from Maribel's residence, defendant said it was his, that he was not talking anymore, and that he wanted a lawyer. Ibid. The interview ended at that time. Ibid.
In a thorough oral decision, Judge De Pascale considered all of the arguments raised by defense counsel and defendant in their PCR submissions. He found that the bulk of their arguments were barred by Rule 3:22-4 because they could have been raised on direct appeal. In addition, most of the remaining arguments had already been rejected in our decision on his direct appeal. R. 3:22-5.
As to the remaining contentions, the judge found defendant had not demonstrated that his trial counsel had been ineffective in any way. Defendant argued his attorney should have raised an alibi defense based upon a statement given by his father that he had been home at the time of the murders. However, neither defendant nor his father had advised trial counsel of this alleged alibi at the time of trial. Instead, defendant insisted he had been in a motel with his girlfriend at the time of the crimes. Therefore, the judge found trial counsel had no information that would have required him to investigate another alleged alibi defense.
For this same reason, the judge found that trial counsel would not have been able to put forward a duress defense on defendant's behalf. As noted, defendant initially claimed he was not present when the crimes occurred. The duress argument would have required counsel to argue to the jury that, if it believed defendant's first alibi was false, then it should consider his second account, which was that he was there, but was forced by the Reid brothers to commit the crimes. The judge found that defense counsel was not ineffective by deciding not to pursue this utterly inconsistent defense.
Finally, the judge rejected defendant's argument that his counsel failed to advise him that he might receive two consecutive life sentences if he was found guilty at trial of both murders. The judge found defendant had failed to present any evidence to support his claim that his counsel did not keep him fully apprised of his sentencing exposure. In addition, defendant refused to accept the same plea offer he now says he would have taken, even though he knew there was a possibility he would receive the death sentence if convicted. Under those circumstances, the judge found no basis for defendant's claim and he denied the petition for PCR.
On appeal, defendant's appellate counsel has raised the following arguments for our consideration:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
(A) Trial Counsel Failed to Pursue An Exculpatory Witness.
(B) Trial Counsel Misadvised Defendant About The Sentencing Consequences If Convicted At Trial.
(C) Trial Counsel Failed to Pursue A Duress Defense.
In a supplemental brief*fn2 filed by defendant on his own behalf, he has raised the following contentions:
APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. Trial Counsel Failed To Object To The Prosecutor Providing  Testimonial Hearsay, During Closing Arguments, To Bolster The Credibility Of State's Witness Jawad Mir, a.k.a. "Jay", And To Bring Forth Allegations That Appellant Scared Off Witnesses; In Violation Of Appellant's Right to Confront Witnesses Against Him, Right To A Fair Trial, Due Process Of Law And Amounted to Prosecutorial Misconduct, Rendering Counsel's Performance Ineffective.
B. Trial Counsel Failed To Explain To Appellant The Tactical [Advantages] And Disadvantages Of Testifying At Trial, Simply Told Him He Was "Not Going To Take The Stand", Refused To Tell Him Why And Enlisted Appellant's Family Into Pressuring Him Into Not Testifying.
C. Trial Counsel Failed to Request 1) The Lesser-Included Offense of Manslaughter; 2) Prior Inconsistent Statement Charge, And 3) The False-InOne, False-In-All Charge, Denying Him The Right To The Effective Assistance Of Counsel, Due Process And A Fair Trial.
D. Trial Counsel Failed to Ensure That The Jury Received The Proper Re-Charge As To The Murder Of Muni Ahn, As An Accomplice.
E. Trial Counsel Failed To Raise The Issue That The "Interrogation: Advice of Rights" Form, Requiring Appellant To Simultaneously Acknowledge And Waive His Miranda Rights, Thereby Violating His Rights As Guaranteed By The New Jersey Constitution And The Fifth, Sixth And Fourteenth Amendments To The United States Constitution, Rendering His Statement Unconstitutional, And Therefore His Statement Must Be Suppressed.
F. Trial Counsel Failed To Investigate And Have A Recorded Conversation On The Cell Phone Downloaded, Which Would Have Significantly Impeached The Credibility Of The State's Star Witness, Jawad Mir, a.k.a. "Jay".
G. Trial Counsel Was Ineffective For Failing To Object To Significant Instances Of Prosecutorial Misconduct, Which Deprived Appellant Of The Effective Assistance Of Counsel, A Fair Trial And Due Process Of Law as Guaranteed By The Sixth and Fourteenth Amendments To The United States Constitution And Art. 1 Par. 10 Of The New Jersey Constitution.
1. The Prosecutor unfairly maligned defense counsel by belittling the type of questions asked on cross-examination, which denigrated counsel and undermined the defense.
2. The prosecutor's disparaging remarks pertaining to the testimony, and credibility, of material defense witness, Angela Williams amounted to misconduct denying Appellant his constitutional right to a fair trial and due process of law.
3. Trial Counsel failed to object when prosecutor vouched for the credibility of Det. Russo, during closing arguments; the prosecutor's actions amounted to prosecutorial misconduct and denied Appellant of his constitutional right to a fair trial.
4. Trial counsel failed to object to the Prosecutor's subornation of perjury in an attempt to support the State's theory that the Appellant provided false accounts to the police; the prosecutor's subornation of perjury amounted to prosecutorial misconduct and it denied Appellant of his constitutional right to a fair trial.
H. Trial Counsel Failed To Request That The Court Remove Jurors For Cause Who Had An Intimate Relationship With Lead Detectives Involved in Appellant's Case, Or In The Alternative Failed To Use [Peremptory] Challenges to Remove Said Jurors.
I. Trial Counsel Failed To Move For A Mistrial, Or, In the Alternative, Request a Voir Dire Of The Jury, When A Juror, At The Outset Of Deliberations, Approached A Court Officer And Engaged In Ex-Parte Communication.
J. Trial Counsel Failed To Object To The Trial Court's Error In Not Providing An Adequate Answer To The Jury's Question As To Any Deal Offered to Jawad Mir a.k.a. "Jay" In Exchange For His Testimony And Failed To Flesh Out The Deal In Which The State Agreed Not To Prosecute "Jay" For Receiving Stolen Property In Exchange For His Testimony.
K. Trial Counsel Failed To Object And Argue That The Trial Court Erred In Shifting The Burden Of Proof To Appellant Regarding The Voluntariness Of Waiver Thereby Violating His Right To Due Process Of Law.
L. Trial Counsel Failed To Argue That Appellant's Alleged Statement Was Taken In Violation Of His Fifth Amendment Right To Remain Silent And Therefore Should Have Been Suppressed.
M. The Legal Errors Committed By Trial Counsel When Viewed Either Individually Or Cumulatively Are Of Such Magnitude To Have Rendered Counsel's Performance Ineffective Mandating A Reversal Of Appellant's Convictions And A Remand For Trial.
THE APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DUE PROCESS OF LAW AND A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION DUE TO THE FAILURE ON THE PART OF APPELLATE COUNSEL TO RAISE OBVIOUS ISSUES OF TRIAL ERROR.
i. State's Witness Detective Russo Made Prejudicial References To Non-Testifying Witnesses, In Violation Of Appellant's Rights To Confront Witnesses Against Him, Due Process of Law.
SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL AND [APPELLATE] COUNSEL,  AND OF OTHER ISSUES OF MERIT, A REMAND FOR A FULL EVIDENTIARY HEARING IS REQUIRED.
THE ERRORS BY THE TRIAL AND APPELLATE COUNSELS CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
We apply the same standard to review claims of ineffective assistance of appellate counsel as we do in assessing ineffective assistance of trial counsel claims. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987). To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)).
Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant contends his trial counsel was ineffective because he failed "to pursue an exculpatory witness." In his PCR petition, defendant presented transcribed statements from his father, Hussein Maqbool; his brother, Adeel Maqbool; and a friend, Sara Mallick. His father and brother both stated defendant had been at their home in Parlin in the early morning hours of November 1, 2002. Defendant alleges that his counsel should have investigated these claims because they would have given him an alibi defense. We disagree.
Two of the three alleged alibi witnesses did not provide defendant with an alibi. In her statement, Mallick only stated that defendant may have gotten into a verbal altercation with a few men in his store earlier in the night of October 31, 2002. This was before the murders were committed. Defendant's brother stated he returned home between 2:30 a.m. and 3:00 a.m. on November 1, 2002 and saw defendant lying on the couch in the living room. This was after the murders occurred. Therefore, neither of these witnesses provided defendant with an alibi.
Defendant's father alleged he went to bed between 10:00 p.m. and 11:00 p.m. He then got up around 1:00 a.m. to say his prayers and saw defendant speaking to someone on the telephone in the living room. The problem with this account is that, if it were true, defendant would have been able to personally provide this information to his attorney in their preparation for trial. He never asserts that he did so. Instead, he alleges his father told counsel about this alibi, but counsel failed to follow up on it. However, defendant's father's statement contains no allegation that he ever informed defendant's counsel of this claim. Under these circumstances, Judge De Pascale properly found that "[c]counsel cannot be faulted" for not investigating a claim defendant and his father kept to themselves until years after the trial.
Just as significantly, defendant had already provided the police with two conflicting accounts of his whereabouts on the night of the murders. He first claimed he was at a motel with his girlfriend. When confronted with evidence that disproved this story, defendant admitted he was at the scene. Even if defendant's father's claim had been made known to defense counsel, he would not have been ineffective if he declined to a raise a third, totally inconsistent account to the jury. Therefore, neither prong of the Strickland test was met.
Defendant next asserts his trial counsel was ineffective because he failed to advise him that, if convicted, he faced the possibility of receiving two consecutive life sentences. Because he allegedly did not know of his true sentencing exposure, defendant contends he did not pursue available plea agreements. This argument also lacks merit.
Defendant was obviously aware that, if he were convicted, he could face the death penalty. As Judge De Pascale observed "[i]f the exposure to a death sentence was not enough to cause [d]efendant to consider the State's plea offer, it is unlikely that his awareness of the possibility of a lesser sentence would have done so." Moreover, other than defendant's "bald assertion," there is nothing in the record to support his claim that he was not aware of the full range of sentences for the offenses that were the subject of the trial. Cummings, supra, 321 N.J. Super. at 170.
Finally, defendant argues his counsel was ineffective because he did not pursue "the defense of duress." We disagree. Even now, defendant has not come forward with any evidence or witnesses to support his claim that he was "forced" to participate in the murders against his will. In addition, such a defense would have been inconsistent with defendant's initial claim that he had been in a motel room with his girlfriend when the murders were committed and his new claim that he was actually at home at that time. Thus, defendant has again failed to meet either prong of the Strickland test.
We now address the claims defendant advances in his supplemental pro se brief. Defendant complains that his trial counsel made errors concerning the handling of the suppression motion, failed to object to incidents of "prosecutorial misconduct," permitted the judge to give flawed instructions to the jury, and failed to remove jurors who were allegedly biased in favor of the State. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add these brief comments.
Defendant has not demonstrated how the result would have been different had counsel undertaken the tasks defendant now claims should have been performed. For that reason, his claims again amount to the "bald assertions" that we held in Cummings were insufficient to support a claim of ineffective assistance of counsel. Supra, 321 N.J. Super. at 170. In any event, defense counsel filed a suppression motion which was adequately argued and then properly denied. As we held on direct appeal, there was nothing inappropriate about the judge's instructions to the jury and nothing the prosecutor said or did while examining witnesses or delivering his closing argument deprived defendant of a fair trial. The jury voir dire was also handled properly.
Defendant also alleges that his appellate counsel was ineffective in his direct appeal because he did not argue the case as defendant wishes he had. However, an appellate counsel is not ineffective for failing to raise every issue imaginable. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). Instead, appellate counsel is afforded the discretion to construct and present what he or she deems are the most effective arguments in support of their client's position. Ibid. Here, appellate counsel filed a detailed brief in support of defendant and adequately argued all of the points on his behalf. Counsel's presentation was not ineffective under the Strickland test.
Finally, defendant argues that Judge De Pascale erred by denying his request for an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).