STATE OF NEW JERSEY v. GRACIANO TIRADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2053-07T42053-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GRACIANO TIRADO,

Defendant-Appellant.

__________________________

 

Submitted March 10, 2009 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-06-0810.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Graciano Tirado appeals from the March 14, 2007 order of the trial court denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Tried to a jury in 2003, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). On December 12, 2003, defendant received a sentence of thirty years on the murder count, with a thirty-year parole ineligibility period, and a concurrent ten-year sentence on the weapons count, with a five-year parole ineligibility period. Defendant appealed. We affirmed his convictions but remanded for amendment of the judgment of conviction to reflect the merger of the weapons count into the murder count. State v. Tirado, No. A-5072-03 (App. Div. February 6, 2006) (slip op. at 13). The Supreme Court denied defendant's petition for certification. State v. Tirado, 186 N.J. 607 (2006).

On May 26, 2006, defendant filed a pro se PCR petition claiming that he was denied effective assistance of trial and appellate counsel. PCR counsel was assigned and filed a brief, in which counsel acknowledged that defendant shot the victim, Zoila Mena, his ex-girlfriend, "twice in the back and in her left temple." The victim's son called the police and defendant awaited their arrival at the scene.

Defendant thereafter made a full confession to the police on the same evening as the shooting. At trial, defendant offered psychiatric testimony to the effect that he could not have acted purposefully because he "was functionally illiterate" and his heavy "ingestion of alcohol[] impaired his reasoning to the extent that he acted recklessly"; however, a State psychiatrist refuted that opinion. State v. Tirado, supra, slip op. at 3, 4.

Defendant claimed that trial counsel was ineffective for failing to call witnesses to corroborate his intoxication defense. Defendant presented no evidence during the PCR proceedings, however, that any such witnesses existed and were available to testify at the time of trial.

At the PCR hearing, counsel argued:

In this matter I think the major issue, as it pertains to the defense of the defendant[,] dealt with the intoxication defense, . . . and the point I wish to make, which I put in the brief, w[as] simply there were no witnesses brought forth by counsel for the defendant, and I think that in terms of preparing this case[,] counsel should have made more effort to find, locate or obtain individuals who could corroborate the defense of intoxication since it clearly was a major issue.

In denying relief, Judge Frederick P. DeVesa found as follows:

The facts of the case are simply that on February 9 of 2002[,] the defendant was waiting at the home of his ex-girlfriend on the front porch and she arrived at that location and it was mid[-]afternoon, I believe, and as she arrived at that location he simply walked up behind her and shot her twice and caused her death. He also threatened her son who came to aid, if you will, and then ultimately the police were called at that time. The defendant responded to the police. He was placed under arrest without incident and very shortly thereafter confessed to the shooting.

. . . .

At this point[,] the defendant has raised in his petition for post-conviction relief the assertion that the defendant's trial counsel simply did not provide effective assistance by failing to present witnesses on his behalf that could corroborate his level of intoxication.

In the trial the defendant had produced an expert witness, Doctor Fernandez, who testified that the defendant, based upon his review of the reports and his interview of the defendant, was intoxicated, and the State produced an expert who testified that the defendant was not suffering from any major disorder of the mind that would provide a defense and that although he might have had a long-term history of alcohol abuse[,] there was nothing in the record to support the fact that he was so intoxicated at the time as to provide him with a defense or mitigation to the charge of murder.

In this case there was no real evidence of intoxication and, indeed, a number of witnesses who were present at or about the time of the shooting had been questioned at the trial and they indicated that the defendant did not smell of alcohol, that he was walking and talking without difficulty and, of course, the [c]ourt had the benefit of the confession of the defendant which was testified to and made clear that the defendant, at least shortly after the shooting, was very coherent and was not apparently impaired in any way.

Clearly, for one to raise a defense of intoxication or even a mitigating factor of intoxication, one's faculties really have to be significantly impaired; and the evidence that was presented in the trial which the jury found obviously persuasive was simply that he was not intoxicated and they rejected the testimony of his expert witness who simply was not present and who apparently was not persuasive in rendering such a conclusion.

. . . .

In this case the petition is simply insufficient in that the petitioner has only alleged that his trial lawyer failed to call any witnesses to support his claim of intoxication, but there are no certifications, there are no affidavits from any witnesses, and this [c]ourt has absolutely no basis to conclude that there are any such witnesses.

Again, during the course of the trial those witnesses who were located and did come to [c]ourt all testified at variance with this alleged defense of intoxication, again, with the exception of the defendant's expert.

So, based on the evidence that was presented, the testimony of those people who were able to offer testimony on the issue of intoxication, the lack of any indication here in the defendant's petition that there were, indeed, witnesses who might have testified as to the defendant's state of intoxication, not to mention a degree of intoxication that would have set up a claim of diminished capacity, the [c]ourt simply finds that the defendant has not made out a prima facia case for ineffective assistance[] [of] counsel and, therefore, the petition for post[-]conviction relief must be denied.

On appeal, defendant raises the following issues for our consideration:

POINT I:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AT LEAST AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

B. THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Having reviewed these contentions in light of the record and the applicable law, we conclude that they are "are without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Defendant has failed to meet the two-pronged test for establishing ineffective assistance of counsel; he has not "show[n] that counsel's performance was deficient," and consequently is unable to demonstrate "that counsel's errors were so serious as to deprive [him] of a fair trial." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

As defendant notes in his brief, his trial counsel's "entire summation attempted to convince the jury [that] the defendant had been sufficiently intoxicated so as to prevent him from acting either knowingly or purposely." Trial counsel had even produced an expert witness in support of defendant's intoxication defense. Had any eyewitnesses to that intoxication been available, it is, therefore, likely that trial counsel would have produced them at trial. Defendant's silence as to the identity and/or availability of any such witnesses is most telling. As the judge noted, witnesses to the shooting "testified at variance with this alleged defense of intoxication . . . ."

Defendant's ineffective assistance of trial counsel claim barely rises to the level of speculation. We affirm substantially for the reasons stated by Judge DeVesa in his bench opinion delivered on March 9, 2007.

Affirmed.

 

In his pro se PCR petition, defendant included a point heading claiming ineffective assistance of appellate counsel. His PCR counsel's brief and oral argument at the hearing, however, addressed only his claim of ineffective assistance of trial counsel. Defendant has not pursued a claim regarding appellate counsel; therefore, this issue "is deemed waived." W.H. Industries v. Fundicao, 397 N.J. Super. 455, 459 (App. Div. 2008).

(continued)

(continued)

8

A-2053-07T4

July 17, 2009