STATE OF NEW JERSEY v. JOSE L. REYES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1999-04T21999-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE L. REYES #205159,

Defendant-Appellant.

_______________________________________

 

Submitted August 30, 2006 - Decided September 6, 2006

Before Judges Yannotti and Seltzer.

On appeal from a denial of post-conviction relief of the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 84-11-1051.

Jose L. Reyes, appellant pro se.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jane E. Hendry, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose L. Reyes appeals from an order entered by Judge Marilyn C. Clark on November 4, 2004 denying defendant's second petition for post-conviction relief (PCR). We affirm.

I.

On November 16, 1984, a Passaic County grand jury charged defendant with: burglary, N.J.S.A. 2C:18-2 (count one); burglary, N.J.S.A. 2C:18-2b(1) and (2) (count two); murder, N.J.S.A. 2C:11-3a(1) and (2) (count three); felony murder, N.J.S.A. 2C:11-3a(3) (count four); aggravated assault, N.J.S.A. 2C:12-1b(1) and (2) (counts five, nine and twelve); terroristic threats, N.J.S.A. 2C:12-3a and b (counts six and ten); attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a (3), (4) and (6) (count seven); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts eight and eleven); and N.J.S.A. 2c:11-3 and possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4 (count thirteen).

The events that led to these charges were detailed by the Supreme Court in State v. Reyes, 140 N.J. 344, 346 (1995). In October 1982, defendant met Norma Martinez (Norma) and soon thereafter they began living together. Defendant and Norma lived together until 1984, when defendant was incarcerated for narcotics possession. Norma and her sister Teresita Martinez (Teresita) moved into the apartment of a friend, Emie Pagan (Pagan). After defendant was released from jail, defendant resumed his relationship with Norma but, when defendant became jealous and abusive, Norma told defendant that she did not want to see him any more and she began to date another man. Ibid.

On October 28, 1984, defendant went to Pagan's apartment to see Norma. An argument ensued, which attracted the attention of Pagan, Teresita and her boyfriend, Roberto Perez (Perez). Teresita told defendant to leave Norma alone and Pagan told defendant to leave. Defendant went across the street to speak with Perez's nephews and later returned to Pagan's apartment. Defendant spoke with Norma outside on the sidewalk and he left the area at about 3:00 p.m. Id. at 346-47.

Defendant went to New York City where he consumed "angel dust" (PCP), heroin, marijuana and a quart of alcohol. He was arrested by a Port Authority police officer for being under the influence of controlled dangerous substances. Defendant was released on bail around 1:45 a.m. and went to a nearby bar, where he smoked a "dust joint," which contains marijuana laced with PCP. Later, he smoked another "dust joint." Id. at 347.

At around 5:00 a.m., defendant went to the apartment of a friend, Eduardo Rosa (Rosa), took a kitchen knife and put it between his belt and his pants. Defendant again returned to Pagan's apartment. He cut through the screen covering the bathroom window with a pair of scissors he had stolen from Rosa's garage. Defendant entered the apartment and went to Pagan's room. He stabbed Pagan several times in the arms and twice in the chest. Pagan died soon after the wounds were inflicted. Id. at 347-48.

Norma, Teresita and Perez awoke. Perez struck defendant. Defendant tried to stab Perez. Perez ducked and defendant stabbed Teresita, who ran screaming from the room. Perez endeavored to subdue defendant but defendant stabbed him several times in the arms and legs. Defendant then terrorized Norma and Teresita for about an hour. Thereafter, defendant took Norma to Rosa's apartment and threatened to kill her. Eventually, the police arrested defendant in the waiting room of the hospital, where he had taken Norma for medical treatment. Id. at 348-49.

The matter was tried as a capital case. After the State rested, the judge dismissed count one. The jury found defendant not guilty on count seven but guilty on all of the remaining charges. In the penalty phase of the trial, the jury's findings precluded imposition of the death penalty. The judge sentenced defendant to an aggregate term of eighty-years imprisonment, with a forty-five year period of parole ineligibility. Id. at 350-51.

Defendant appealed and raised the following arguments: the trial judge erred by improperly instructing the jury on voluntary intoxication; the judge erred in admitting certain "other crimes" evidence; the judge erroneously failed to provide a limiting instruction respecting the "other crimes" evidence; the judge violated defendant's right to due process by denying him the opportunity to cross examine a witness about her drug use; the prosecutor's opening statement was improper and denied defendant his right to a fair trial; and the judge erred by admitting into evidence certain allegedly inflammatory and unduly prejudicial photographs of the crime scene. We rejected these contentions and affirmed the convictions and sentences in an unpublished opinion filed on March 27, 1989. On September 6, 1989, the Supreme Court denied defendant's petition for certification. Id. at 351-52.

Defendant filed his first PCR petition on August 5, 1991. Defendant argued that the charge on diminished capacity was unconstitutional and he was denied the effective assistance of counsel because his trial attorney did not object to the charge and his appellate counsel did not raise the issue on direct appeal. The trial judge denied defendant's PCR petition, finding that there was no evidence in the record that defendant was suffering from any psychosis or mental disease or defect at the time he committed the offenses. The judge found that defendant was jealous, angry, out of control and probably affected by PCP, heroin and marijuana. The judge determined that the jury should not have been instructed on diminished capacity because the evidence did not support the charge. Id. at 352-53. Defendant appealed and we reversed. Id. at 353. However, the Supreme Court concluded that although the charge was erroneous, the error was harmless because there was no evidence that defendant had a mental disease or defect at the time he committed the crimes. Id. at 366.

Defendant filed a habeas corpus petition in the United States District Court. On May 3, 1996, the federal district judge denied the petition, noting his agreement with the analysis and conclusion reached by our Supreme Court in Reyes. The Court of Appeals for the Third Circuit declined review on April 15, 1997.

On June 21, 2002, defendant filed a second PCR petition and requested the appointment of counsel. In the petition, defendant alleged that he was denied the effective assistance of counsel because his trial attorney did not properly prepare his case; did not advise him of his right to testify or not to testify; and failed to properly advise him concerning his possible defenses since he was "under medication" at the time of trial. In his brief, defendant additionally argued that the consecutive sentences were illegal and the judge should have found certain mitigating factors.

Defendant filed another brief in which he raised additional claims: the five-year procedural bar under R. 3:22-12 should not apply; the State improperly failed to turn over the criminal case histories of Teresita and Zabulon Rodriguez (Rodriguez); his trial attorney was ineffective because he did not seek a competency hearing even though defendant was purportedly on psychotrophic medication at the time of trial; and counsel erromeously failed to request a charge on passion/provocation manslaughter.

On February 17, 2003, Judge Clark denied defendant's request for the appointment of PCR counsel. The judge heard oral argument on the petition on April 25, 2003 and on that date denied the petition, setting forth her reasons for doing so in detail on the record. The judge directed the prosecutor to produce the "rap" sheets for Teresita and Rodriguez, so that she could further consider defendant's claim that the State had improperly failed to produce relevant information for cross examination of these witnesses. The judge adjourned the matter to May 23, 2003.

At the hearing held on May 23, 2003, the prosecutor reviewed the "rap" sheets for Teresita and Rodriguez. The judge concluded that when the matter was tried, the State provided the defendant all of the relevant information concerning the criminal histories of these witnesses. Defendant subsequently moved for reconsideration. On November 4, 2004, the judge filed a thorough and comprehensive letter opinion in which she detailed her reasons for denying reconsideration. The judge entered an order dated November 4, 2004 denying PCR. This appeal followed.

Defendant raises the following contentions for our consideration:

POINT I:

THE COURT BELOW ERRED BY ENFORCING THE PROCEDURAL BARS, WHERE MATTERS WHICH LAY OUTSIDE THE RECORD REPRESENTED A MANIFEST DENIAL OF JUSTICE.

POINT II:

DEFENDANT'S RIGHT OF DUE PROCESS TO A FAIR TRIAL WAS VIOLATED BY THE STATE'S FAILURE TO PROVIDE THE CRIMINAL CASE HISTORIES OF ITS WITNESSES WHICH WOULD HAVE ALLOWED THE DEFENSE TO IMPEACH THEIR CREDIBILITY.

POINT III:

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT ALL PHASES, SPECIFICALLY AT TRIAL, ON APPEAL AND DURING HIS FIRST PCR PROCEEDINGS, WHICH REQUIRES AN EVIDENTIARY HEARING AND THEN THE GRANT OF POST CONVICTION RELIEF.

We have carefully considered these contentions and thoroughly reviewed the record on appeal. We are convinced that these contentions are entirely without merit.

II.

Defendant argues that the judge erred in finding that this second PCR petition was barred under R. 3:22-12 because it was filed more than five years after the judgment of conviction was entered, and barred under R. 3:22-4 because defendant asserted grounds for relief that could have been raised on direct appeal. We note that, although the judge found that the PCR petition was barred under these rules, the judge carefully considered defendant's claims on the merits. Because we conclude that defendant's substantive claims are without merit, we decline to address these alternative bases for the judge's decision.

However, we note that the record establishes that this second PCR petition was filed long after the five-year limitations period established in R. 3:22-12. Such an untimely petition may only be considered if defendant shows "excusable neglect" for the delay. Ibid. Defendant asserts that his failure to file the second petition within the time required by the rule is excusable because all of his prior attorneys erred by failing to raise these issues at trial, on direct appeal or in the first PCR.

This explanation does not establish excusable neglect for the filing of the instant petition about seven years after our Supreme Court rendered its decision on defendant's first PCR petition and five years after the conclusion of the federal habeas proceedings. Surely, if defendant's attorneys erred in failing to raise these issues in the prior proceedings as defendant now claims, defendant was well aware of their failure to do so long before June 21, 2002, when this petition was filed.

III.

We turn to defendant's contention that he was denied the effective assistance of counsel at trial, in the direct appeal and in his first PCR proceeding. Defendant argues that his trial attorney was ineffective because his attorney: did not object to the jury instruction on intoxication; failed to discuss with defendant the issues to be presented regarding the sentence and in the appeal; did not adequately advise defendant on his right to testify and not to testify; failed to seek a hearing on defendant's competency even though defendant purportedly was "under the extreme influence of psychotrophic medication;" allowed defendant to be cross-examined in his "medicated state-of-mind;" failed to seek an instruction on passion/provocation manslaughter; and failed to object to flawed jury instructions on felony murder, reckless and aggravated manslaughter. Defendant also argues that his attorneys erred by failing to raise these points in the direct appeal and the first PCR petition.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, defendant first must show that counsel's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant also must establish that the deficient performance of his attorney prejudiced the defense. Ibid.

To establish that his or her attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In assessing whether counsel was deficient in his representation of a defendant, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). In addition, to establish that defendant was prejudiced by the deficient performance of his attorney, defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We reject defendant's assertion that trial counsel erred by failing to seek a hearing on his competency to stand trial. As Judge Clark pointed out in her decision on the record on April 25, 2003, defendant retained two experts who rendered opinions regarding his competency. Dr. Kenneth Burn performed extensive psychological testing and, in his report, concluded that defendant was competent to stand trial, understood the nature of the charges against him and was able to assist his attorney in preparing a defense. Dr. Rudolph Sadoff relied in part upon Dr. Burn's testing and report. Dr. Sadoff evaluated defendant while in prison and, in his testimony at trial, asserted that defendant was competent. In view of the conclusions reached by the defendant's own experts, the judge properly found that defendant's attorney did not err in failing to seek a competency hearing. That finding is supported by the record and is binding on appeal. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

We also reject defendant's assertion that his trial attorney erred by allowing defendant to testify at trial because he was at the time purportedly taking psychotrophic medications. In her oral decision of April 25, 2003, Judge Clark noted that Dr. Sadoff evaluated defendant in June 1985 and stated in his report that defendant had been off medication for six weeks. The judge found that there was no indication from defendant's testimony or his behavior during trial that defendant was on medication or that any such medication impaired his understanding or judgment. The judge found that there was not a shred of evidence in the record that defendant was not fully competent. That finding also is supported by the record and is binding on appeal. Ibid.

We additionally are convinced that there is no merit in defendant's assertion that his trial attorney erroneously failed to consult with him during the course of his representation. Judge Clark noted in her April 25, 2003 oral decision that defense counsel stated on the record that he had spoken with defendant ten times and, on two or three other occasions, he tried to see defendant in prison but defendant refused to meet with him. In addition, a letter from the prosecutor's file indicated that defense counsel had spoken to defendant repeatedly about the State's proposed plea agreement. Based on this evidence, the judge properly rejected defendant's claim that he was denied the effective assistance of counsel because of a purported lack of consultation.

There also is no merit in defendant's contention that trial counsel did not properly advise him concerning the decision to testify. Here, the record reflects that the trial judge asked defense counsel whether defendant would be testifying. Counsel responded by stating that he thought the issue had been resolved but requested a recess so that he could discuss the matter with one of defendant's family members. A recess was taken and thereafter counsel advised the judge that defendant wanted to testify. Based on the trial record, the judge properly found, "Although there is not a substantial discussion on the record, it is clear that both [trial counsel] and a family member spoke to [defendant] about this decision."

We additionally reject defendant's claim that his attorney erred by failing to seek a charge on passion/provocation murder. As Judge Clark found, there was no basis in the evidence for such a charge. Defendant murdered Pagan. The evidence showed that, if defendant was enraged with anyone, it was Norma - not Pagan. Thus, as Judge Clark correctly pointed out, there was no evidence of any provocation by Pagan and defendant's "violent and sadistic response was not reasonable by any definition." Moreover, there was a substantial period of time in which defendant could have "cooled off" although, as Judge Clark found, "clearly he did not." In view of these findings, the judge correctly determined that counsel did not err in failing to seek the passion/provocation manslaughter charge. Such a request would have been totally without merit and would have been properly rejected by the trial judge had the application been made.

We also are satisfied that there is no merit in defendant's assertion that the State failed to produce the criminal case histories of two witnesses, Teresita and Rodriguez. According to defendant, the criminal case histories of these witnesses would have revealed that they were under investigation when they testified and therefore both witnesses had a motive to fabricate. Defendant contends that he was denied the assistance of counsel because his trial attorney did not press the point.

In her written opinion of November 4, 2004, Judge Clark made the following findings on this claim:

This court has reviewed the criminal histories of the two witnesses that [defendant] asserts should have been questioned regarding their prior criminal histories. The following is a summary of the status of the criminal histories of these two witnesses at the time of their trial testimony.

A. Teresita Martinez

Ms. Martinez was arrested on January 21, 1984 on charges of possession of CDS, obstructing the police and contributing to the delinquency of a minor. On March 31, 1984, the Bergen County Grand Jury no-billed the non-bail charges and indicted her for possession of a [hallucinogen]. She was granted a 6 months conditional [dis]charge on November 13, 1984.

The jury was made aware of this arrest during Ms. Martinez' testimony. [Defense counsel] asked her on cross-examination at pages 96-97 of the June 19, 1996 transcript if she had ever been arrested with [defendant]. She stated that she had been and testified about this arrest. This was clearly a legitimate attempt by [defendant's attorney] to show past drug use by [defendant] who was asserting diminished capacity and drug abuse. Hence, it is clear that, as [the prosecutor] asserted, the defense had discovery of the criminal history of Ms. Martinez.

B. Zabulon Rodriguez

Mr. Rodriguez testified as a defense witness at the trial. He was 19 years old at the time of his testimony. He stated that he had seen [defendant] at approximately 3:30 a.m. on October 29, 1984 - approximately two hours before the attack. He stated that he saw [defendant] smoking "angel dust" and that he looked "high." He also testified that [defendant] had said something about "needing bullets for a gun." On cross-examination by [the prosecutor], Mr. Rodriguez testified that [defendant] had not slurred his words and had seemed "in control."

A review of Mr. Rodriguez' rap sheet reveals that on December 30, 1985 he was arrested for possession of stolen property, resisting arrest and obstructing the police. He later pled guilty under indictment 903-96 to possession of stolen property [N.J.S.A.] 2C:20-7, and received 3 years probation on October 30, 1986. He was also arrested on April 10, 1986 and pled guilty to larceny under indictment 1556-86. He was sentenced on December 5, 1986 to an indeterminate to five year custodial term at Yardville.

He was also arrested on May 30, 1986 for larceny and pled guilty on December 5, 1986 and received a concurrent 5 year indeterminate term at Yardville.

Hence, it is evident that at the time of his June, 1986 testimony, Mr. Rodriguez was on probation and had other indictable charges pending. As noted above, [the prosecutor] provided [Rodriguez's] full criminal history to [defense counsel] before trial and has represented that no promises or agreements of any kind were ever discussed or made to Mr. Rodriguez.

As noted above, Mr. Rodriguez was a defense witness who testified on behalf of [defendant]. This court has reviewed his testimony and notes that neither his probation status, his prior conviction nor his pending charges were raised by either side. Thus, this defense witness testified without impeachment via his criminal record which was known to both sides. Clearly, if this benefited anyone, it would have been [defendant].

There is ample support in the record for Judge Clark's findings.

 
We have considered defendant's other contentions and find them not to be of sufficient merit to warrant discussion of the same in this opinion. R. 2:11-3(e)(2).

Affirmed.

(continued)

(continued)

17

A-1999-04T2

September 6, 2006