NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-10-1227.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Sabatino.
Defendant Carlos Feal appeals from the trial court's denial of his application for post-conviction relief ("PCR"). The PCR application was considered in the wake of the Supreme Court's reinstatement of defendant's conviction on direct appeal. See State v. Feal, 194 N.J. 293 (2008) (rejecting defendant's claim that he was entitled to a new trial under a retroactive application of State v. Daniels, 182 N.J. 80 (2004), with respect to the prosecutor's improper closing argument suggesting that defendant had "tailored" his trial testimony).
Because the relevant facts and background have already been set forth in the Supreme Court's decision and in our prior unpublished opinions on direct appeal, we need not repeat them at length here. After a 2003 jury trial, defendant was convicted of first-degree murder of his girlfriend with a firearm, N.J.S.A. 2C:11-3(a)(1). He was also found guilty of two related weapons offenses. The trial court imposed a forty-year custodial sentence, subject to a thirty-year period of parole ineligibility.
To establish that defendant shot the victim purposefully, the State presented testimony at trial from a ballistics expert and from the medical examiner who had performed the autopsy. The ballistics expert examined a projectile recovered from the scene of the shooting, and concluded that it had been fired from a revolver. The ballistics expert further opined that a revolver could not be fired without a finger exerting some force on the trigger.
The medical examiner determined that the bullet had entered the interior aspect of the victim's left shoulder and that the exit wound was above her waistline on the right side. According to the medical examiner, the bullet had passed through the chest cavity, including the heart and a lung. The medical examiner also noted that there was a fresh contusion on the victim's scalp, which was consistent with a blunt force caused by the butt of a gun.
During her examination, the medical examiner responded to several hypothetical questions posed by the prosecutor, essentially delving into whether the autopsy findings were consistent with the State's theory that defendant had stood over the victim and shot her while she was in a seated position. The medical examiner did not state how the gunshot wound occurred based on its trajectory, but only responded to whether the hypothetical questions posed by the prosecutor were or were not consistent with the bullet's course.
Defendant took the stand at trial. He contended that the gun had fired accidentally while he was allegedly trying to take it out of the victim's hands. In summation, the prosecutor argued to the jury that defendant's testimony was not credible because he had the chance to tailor it to the testimony of other witnesses he had heard in the courtroom.
On direct appeal, a panel of this court in March 2007 granted defendant a new trial because the prosecutor's "tailoring" statement violated the limitations on such arguments later announced in 2004 by the Supreme Court in Daniels. Feal, supra, slip op. at 11-16. However, on further review, the Court concluded that although the Daniels holding should have pipeline retroactivity in cases such as this one that were on direct appeal when the holding was announced, the Daniels violation in this case was harmless error. Feal, supra, 194 N.J. at 310-13. The Court observed that "the prosecutor's fleeting references to ...