United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
The petitioner, Jin Sig Choi, is a state prisoner at the New Jersey State Prison in Trenton, New Jersey. He is proceeding pro se with a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Mr. Choi was convicted by a jury in 2005 of murder and felony murder, and is currently serving a sentence of life imprisonment with thirty years of parole ineligibility. He raises multiple claims, including erroneous failure to suppress statements and evidence, inadequate voir dire of jurors, prosecutorial misconduct, and ineffective assistance of counsel. For the following reasons, the habeas petition will be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 1995, sometime after 11:30 p.m., Usung [Suh] was stabbed eight times with a knife in the attached garage of her home on Mill Run in Paramus, New Jersey. Usung died within ten minutes of the attack.
Usung's husband Michael Suh (Michael) testified that in January 1995, he was living with Usung, his mother-in-law, and his two young children, in Paramus. At the time, Michael owned farmers' markets in East Rutherford, Union City, and Hackensack. The markets would generate about $30, 000 in cash every day. In the evenings, Michael would bring the cash home and give it to Usung, who managed the money for the businesses. Michael would go in the mornings to the Hunts Point Market in the Bronx, New York, to purchase merchandise with about $30, 000 in cash. Michael said that on the night of the robbery and murder, there was about $100, 000 in cash in his home.
Michael testified that on the evening of January 4, 1995, after his markets closed, he went to the Union City apartment of a woman with whom he was having a relationship. He left the apartment about 11:00 p.m. and drove home. Michael had in his possession about $20, 000 in cash, which he put in a gym bag that he used to carry money. At about 11:30 p.m., Michael arrived home and opened one of the two doors to the garage, using the automatic garage door opener.
Usung's car was parked in the bay on one side of the garage. Michael drove into the garage and activated the device to close the garage door. Usung opened the door from the garage into the kitchen. She waved, turned around, and started to go back into the house. At this point, Michael observed a man with a ski mask in the front of Usung's car. Michael honked the horn to alert Usung to the presence of the intruder.
Michael looked in his rear view mirror and saw another person, who had entered the garage before the garage door had fully closed, and apparently tripped the device causing the door to open again. According to Michael, this individual also was wearing a ski mask. He came up next to Michael's car and tried to open the car door. The door was locked. The intruder pointed a gun at Michael, who leaned away in an effort to protect himself. Michael said that he heard two clicks. The gun did not fire. Michael put his car into reverse and started to back out of the garage.
As he was backing out, Michael saw Usung. She was screaming and trying to get from the garage back into the kitchen. Michael drove away, and made a 9-1-1 call on his cell phone to report the incident to the police. A neighbor who heard noise at the Suh home, and saw someone being attacked by one of the intruders, also alerted the police.
On the road, Michael waved down a police officer who was heading to the Suh home. Michael and the officer drove to his house. Other police officers were already on the scene. When the police entered the garage, they found Usung's lifeless body, lying on a bicycle. The officers also found two live nine millimeter bullets on the garage floor.
The following morning, a police officer found the knife used in the stabbing on an embankment in Paramus, near Paramus Road, between Midland Avenue and Mill Run. Several weeks later, an individual who was walking her dog found a nine millimeter Smith and Wesson handgun, with a fully loaded magazine on a bicycle path in Ridgewood, New Jersey. The pedestrian turned the weapon over to the Ridgewood police, who removed the magazine and a bullet from the chamber of the gun. The police found another loaded magazine near the spot where the pedestrian found the weapon. Ballistic tests revealed that the bullets found in the garage of the Suh residence had been ejected from the weapon recovered in Ridgewood.
In the weeks that followed, the investigators made inquiries regarding the gun. Their investigation led them to an individual named Pil Jung Kim (Kim) at Hunts Point Market. Kim took the detectives to meet Chung Hoon Park (Park). Park testified that he was defendant's friend, and he had worked with him for about eight months. Park said that in November 1994, he met defendant and Jae Shik Jang (Jang) at a restaurant. Defendant told Park that Jang needed a gun because he had been robbed in the past.
A few weeks later, Park obtained a gun from Kim and sold the gun, two gun clips, and a boxed case of bullets to defendant and Jang for $500. At trial, Park identified the weapon that was sold to defendant and Jang. It was the gun found on the bicycle path in Ridgewood. Park testified that the day after he spoke with the police about the gun, defendant called him twice. Park told defendant that the police were looking for the individual who purchased the weapon. Park told defendant to contact the police. Defendant did not do so.
The investigation focused on defendant and Jang. The investigators learned that Sang Sun Lee (Lee) was Jang's roommate. The investigators spoke with defendant's relatives and learned that defendant's wife owned a white and gray Chevy Blazer. In the following months, the investigators tried to locate defendant, Jang, and Lee. After a story about the case was featured on the "America's Most Wanted television program, the police received a tip that the suspects were in Tacoma, Washington.
The investigators traveled to Washington. At or about this time, Jang turned himself in to the authorities in Missoula, Montana. Jang was brought back to New Jersey. He was charged and later convicted of murder, attempted murder, armed robbery, armed burglary, felony murder, and unlawful possession of a weapon. Jang was sentenced to life in prison, with a forty-year period of parole ineligibility. [FN 1]
[FN 1] Jang's conviction and sentences were affirmed on appeal. State v. Jang, 359 N.J.Super. 85 (App. Div.), certif. denied, 177 N.J. 492 (2003).
In 2003, the investigators learned that defendant was in South Korea. The Office of International Affairs in the United States Department of Justice was contacted and a request was made for defendant's extradition. On January 4, 2004, defendant was arrested in South Korea and in April, 2004, he was returned to the United States in the company of federal law enforcement officers, who transferred custody of defendant at Newark International Airport to Detectives Mark Bendul (Bendul) and Richard Cary. Defendant was transported to the Bergen County Prosecutor's office in Paramus.
There, Bendul informed defendant of his Miranda [FN 2] rights, which were set forth on a typed form in the Korean language. Bendul speaks Korean. In that language, Bendul advised defendant of his rights and asked defendant to acknowledge that he understood his rights. Bendul testified that he had defendant read each of the rights out loud. Defendant also read the waiver section of the form and signed it.
[FN 2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Defendant gave a statement to Bendul. He stated that he and Jang fled to Tacoma in February 1995 to find Lee. From Tacoma, defendant had traveled to South Korea. Defendant said that he met Michael Suh at Hunts Point Market. He knew that Michael ran a successful produce business, and in the past Michael had hired him to deliver produce to his markets. Defendant also met Jang at Hunts Point Market. Defendant stated that he did not know Lee very well.
Bendul questioned defendant about Usung's murder. Defendant initially denied any involvement, but later asserted that he met Jang and Lee on the evening of January 4, 1995, and Jang told him he had business to take care of in New Jersey. Jang asked for a ride and defendant drove him in his Chevy Blazer. While crossing the George Washington Bridge, Jang said that they had a job to do, meaning a robbery or burglary. Defendant said that, at Jang's request, he had previously arranged for Park to sell Jang a gun. Defendant stated that he did not know who had obtained the knife. He also did not know where the ski masks had been obtained but Jang and Lee had them.
Defendant, Jang, and Lee arrived at the Suh residence at around 11:00 p.m. Defendant stopped briefly in front of the house and Jang and Lee got out of the car. Defendant said that he turned the vehicle around and parked about fifteen or twenty meters away, with the engine running and the lights out. Jang and Lee went toward the house. Defendant was asked whether anyone had smoked that night. Defendant said that he did not know. [FN 3] According to defendant, Michael arrived at the house around 11:30 p.m. Defendant said that he heard a loud noise. He saw someone leave a car. Defendant said that he left when he heard the loud noise.
[FN 3] DNA on a cigarette butt found at the crime scene matched the DNA sample provided by defendant.
The jury found defendant guilty on all charges. At sentencing, Judge Conte merged counts two and three with count one, and sentenced defendant to life imprisonment, with a thirty-year period of parole ineligibility. Monetary penalties also were imposed.
(Dkt. No. 10-3 at p. 2-9.) The specific charges of which Mr. Choi was found guilty were one count of murder, N.J. Stat. Ann. § 2C:11-3a(1) and/or (2), and two counts of felony murder, N.J. Stat. Ann. § 2C:11-3(a)(3).
Mr. Choi appealed his judgment and conviction to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed the judgment and conviction on February 13, 2007. The New Jersey Supreme Court denied certification on May 3, 2007. See State v. Choi, 923 A.2d 230 (N.J. 2007).
In December, 2007, Mr. Choi filed a post-conviction relief ("PCR") petition in the Superior Court of New Jersey, Bergen County. The Superior Court denied the PCR petition in October, 2009. Choi appealed, and on April 28, 2011, the Appellate Division affirmed the denial of the PCR petition. ( See Dkt. No. 10-8.) The New Jersey Supreme Court denied certification on October 20, 2011. See State v. Choi, 29 A.3d 743 (2011).
In June 2012, this Court received Mr. Choi's federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition raises several claims:
I. The Court below erred in denying the motion to suppress statements.
II. The Court below erred in denying the motion to suppress physical evidence.
III. Mr. Choi's conviction should be reversed because of prosecutorial misconduct during summation.
IV. The trial court conducted inadequate voir dire.
V. The demonstration of the gun being racked and a dummy bullet being ejected was inflammatory.
VI. Mr. Choi is entitled to an evidentiary hearing to show that he was denied his state and federal constitutional rights to the effective assistance of counsel when his trial attorney failed to advise him of his right to testify at the hearing to suppress a statement and body samples and at trial.
VII. Mr. Choi is entitled to an evidentiary hearing to show that he was denied his state and federal constitutional rights to the effective assistance of counsel when his trial attorney failed to challenge the state's translation of a letter written by Mr. Choi in Korean.
VIII. The trial court erred in denying Mr. Choi's petition for PCR without affording him an evidentiary hearing to fully address his contention that he failed to receive adequate legal representation at the trial level as a result of trial counsel's failure to advise him of his right to testify during a suppression hearing as well as at trial.
IX. The trial court erred in denying Mr. Choi's petition for PCR without affording him an evidentiary hearing to fully address his contention that he failed to receive adequate legal representation at the trial level as a result of counsel's failure to retain an expert to rebut a portion of the State's translation of a letter written by Mr. Choi in Korean.
X. Neither New Jersey Court Rules 3:22-4 nor 3:22-5 precluded the trial court from adjudicating issues raised in Mr. Choi's PCR petition on their substantive merits.
Respondent was ordered to file an answer to the habeas petition. In addition to arguing that the claims lack merit, respondent's answer asserted that Claims II, III, IV, and V are procedurally defaulted and that Claims II, V, VIII, IX, and X do not raise federal constitutional issues upon which relief can be granted. Mr. Choi filed a traverse in reply.
III. HABEAS CORPUS - LEGAL STANDARD
A writ of habeas corpus for a person in custody under judgment of a state court can be granted only for violations of the Constitution, laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers, 208 F.3d 414, 415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Because Mr. Choi filed his petition for writ of habeas corpus after April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must "first decide what constitutes clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "[C]learly established federal law' under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision." Id. (citations omitted). And, having identified the governing principle of federal law, a habeas court must also ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
The AEDPA standard under § 2254(d) is a "difficult" one to meet; it is a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011). Review under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." Id. The petitioner has the burden of proof.
In applying AEDPA's standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Furthermore, "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). AEDPA deference remains appropriate, even as to summary state court rulings; "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 62 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
A. Claim I - Suppression of Statements
In Claim I, Mr. Choi asserts that the trial court erred in failing to suppress the statements he made to the police. He points to six alleged errors: (1) the State did not show that he waived his rights; (2) the statements were not voluntary; (3) the statements were taken in violation of his right to counsel; (4) the statements were taken in violation of the Vienna Convention on Consular Relations; (5) the introduction of the statements violated the Confrontation Clause; and (6) introduction of the statements was a due process violation. I consider them in order.
1. Waiver of Miranda Rights
Mr. Choi first argues that the State failed to show that he waived his Miranda rights. The last reasoned decision on this argument came on Mr. Choi's direct appeal to the Appellate Division, which analyzed this claim as follows:
Defendant first argues that his statements should have been suppressed because the State failed to establish that he validly waived his Miranda rights. We disagree.
The waiver by a suspect of his Miranda rights is valid when it is made "voluntarily, knowingly and intelligently." Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707. The State must prove the validity of a voluntary confession beyond a reasonable doubt. State v. Cook, 179 N.J. 533, 562 (2004) (citing State v. Galloway, 133 N.J. 631, 654 (1993)). In making this determination, the trial judge must consider the totality of the circumstances, "including both the characteristics of the defendant and the nature of the interrogation." Id. at 563 (quoting Galloway, supra, 133 N.J. at 654).
Here, the record shows that Bendul advised defendant in the Korean language of his rights under Miranda. Bendul testified that he had defendant read the Miranda waiver form out loud and defendant acknowledged that he understood his rights. Defendant also read and signed the Miranda waiver form. Based on Bendul's testimony, Judge Conte properly determined that defendant had made a knowing, intelligent and voluntary waiver of his Miranda rights.
(Dkt. No. 10-3 at p. 10.)
In Miranda, the United States Supreme Court explained that a person questioned by law enforcement after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444; see also Oregon v. Mathiason, 429 U.S. 492, 495 (1977). When the police subject a person in custody to interrogation without warning him or her of those rights, the statements they elicit may not be admitted for certain purposes in a criminal trial. See Stansbury v. California, 511 U.S. 318, 322 (1994). A defendant may waive his Miranda rights. But that waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, " and "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986).
During the suppression hearing, Detective Bendul (who speaks Korean) was asked how he explained the Korean-language Miranda form to Mr. Choi:
I placed the date, time and place in the space provided on top of the form and I verbally advised him of his Miranda rights. There are five listed on this form. I asked him if he understood each of these rights and he replied yes. I then gave him the form and asked him to read out loud each one of these rights. He did that. I then asked him to write his response of "yes" or "no" after each right. He wrote in Korean "yes" after each right.
I asked him to initial his name after that response. He wrote his name in English "Choi", his last name, in English next to each "yes" response.
I then took the form back and I verbally advised him of the waiver portion of the Miranda rights form and asked him if he would speak to me regarding this case without the presence of an attorney.
He agreed. I then gave him the form back to him, asked him to fill in the space provided with his name. He wrote his full name in Korean in the space provided in the waiver portion. He then read the waiver portion and again told me that he was willing to speak to me and he signed at the bottom of the form. Detective Breit and I then signed the form as witnesses.
(Dkt. No. 10-11 at p. 27.)
The Appellate Division appropriately cited the applicable legal standard. Its decision that Mr. Choi voluntarily waived his Miranda rights was grounded in the factual record, particularly Detective Bendul's testimony. I therefore find that the Appellate Division did not unreasonably apply clearly established federal law or make an unreasonable determination of the facts. This claim does not merit federal habeas relief.
2. Statements were involuntary
Mr. Choi next argues that his waiver of his right to remain silent, even if Mirandized, was nevertheless involuntary. He notes that his trip from South Korea to New Jersey was lengthy. He states that he was questioned for over five hours and was confronted with a co-defendant's statement. Those circumstances, he says, establish that his statements to police should have been suppressed.
Again, the last reasoned decision on this claim comes from the Appellate Division on Choi's direct appeal:
Defendant also argues that the waiver of his Miranda rights cannot be considered voluntary because he was subjected to about five hours of questioning after a lengthy flight from Korea, which took approximately twenty-six hours and included stops in Japan and Chicago. However, Bendul testified that defendant said the flight had been "uneventful." Defendant told Bendul that the federal marshals had been "very kind to him." Defendant also said that he "had food, rest, [and] sleep." Furthermore, at the prosecutor's office in Paramus, the detectives permitted defendant to use the rest room, and they gave defendant water upon his request.
The record fully supports the judge's finding that the police treated defendant "quite well." Moreover, the fact that defendant was questioned for over five hours does not establish that defendant's statements were made involuntarily. See State v. Knight, 183 N.J. 449, 469 (2005) (noting that "the length of the interrogation alone is insufficient reason to invalidate defendant's confession").
(Dkt. No. 10-3 at p. 11-12.)
The United States Supreme Court has explained that a valid Miranda waiver has two dimensions:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice ...