NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2013
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-04-479.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
Before Judges Fisher and Koblitz.
Defendant Juan Quinones appeals from the August 11, 2011 order denying his petition for post-conviction relief without an evidentiary hearing. A jury convicted defendant of murder, N.J.S.A. 2C:11-3a(2) (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count three). The judge merged count two into count one and imposed a sixty-year term of incarceration with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a consecutive five-year term for the weapon conviction. We affirmed on appeal, remanding only for resentencing on count three. State v. Quinones, No. A-0269-04 (App. Div. March 31, 2008). The Supreme Court denied defendant's petition for certification. 197 N.J. 16 (2008). We affirm the denial of defendant's PCR petition.
Defendant was convicted of murder in 2004. We detailed the facts at length in our opinion on direct appeal. Quinones, supra, slip op. at 2-14. We summarize those facts here. During a fist fight, defendant shot the victim in front of a large crowd of people in Paterson. The State called four eyewitnesses. Two witnesses identified defendant in court as the shooter. One of these two knew defendant from the neighborhood and identified him in court by his nickname. The other witness made an in-court identification of defendant as "the Spanish guy" he saw shoot the victim. During the fight, defendant took a gun from his son John-John, who had accompanied defendant to the scene. After the murder, defendant fled the scene. He was arrested by an FBI task force in Philadelphia one month later.
John-John lived in Seattle, Washington, at an address known to both the State and defendant. Neither defendant nor John-John testified at trial and the prosecutor suggested through cross examination of defendant's sister and mother and in his summation that defendant's family was purposefully preventing John-John from testifying. The trial court denied the State's request for a Clawans charge, which would have permitted the jury to infer that defendant did not call his son as a witness because he believed that testimony would have been harmful to his defense, but the judge also did not instruct the jury that it could not draw an inference against defendant, nor did defense counsel seek such a charge.
One of the issues defendant raised on direct appeal was:
IT IS REVERSIBLE ERROR TO ALLOW THE STATE TO QUESTION DEFENDANT'S WITNESSES AND COMMENT IN SUMMATION UPON DEFENDANT'S FAILURE TO PRODUCE JUAN QUINONES, JR. [JOHN-JOHN] FOR TESTIMONY.
We found on direct appeal that the comments and questions by the State were improper, but constituted harmless error that did not require a new trial. Quinones, supra, slip op. at 21. Judge Fisher, concurring and joined by Judge Stern, went further, stating, "In my view, this circumstance required that the trial judge instruct the jury that it could not draw an inference against defendant based on John-John's absence from the trial; indeed, I believe State v. McGraw, 129 N.J. 68 (1992) required such a cautionary instruction." Id. slip op. at 5 (Fisher, J.A.D., concurring). The two concurring judges determined that the failure to give this cautionary instruction, however, was harmless error based on our Supreme Court's decision in McGraw, and both joined in the affirmance. Id. slip op. at 11-12 (Fisher, J.A.D., concurring).
Defendant also raised the following issue on direct appeal:
THE PERFORMANCE OF DEFENSE COUNSEL DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONST. AMEND. VI AND N.J. CONST. ...