STATE OF NEW JERSEY v. NELSON ALVARADO DELEON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5416-06T45416-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NELSON ALVARADO DELEON,

Defendant-Appellant.

__________________________________

 

Submitted January 7, 2009 - Decided:

Before Judges Stern, Waugh and Newman.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 99-04-1262.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nelson Alvarado DeLeon appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

I

Defendant served as a lookout while three others robbed, shot, and killed one Camden drug dealer and shot and seriously injured his associate. Defendant was tried before a jury, which found him guilty of thirteen charges, including first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3).

Defendant received consecutive sentences resulting in an aggregate term of fifty-three years imprisonment, with forty-four years, five months, and eighteen days parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant argued on his direct appeal that he had ineffective assistance of counsel, and that the trial judge erroneously charged accomplice liability, imposed an excessive sentence, and failed to submit NERA eligibility to the jury. We affirmed, but remanded to correct the sentence without changing the aggregate term. State v. Nelson Alvarado-DeLeon, No. A-6821-00T4 (App. Div. Sept. 29, 2003).

Defendant was convicted principally on a theory of accomplice liability. The evidence presented against him included his tape-recorded confession, a transcribed copy of which, translated from Spanish to English, was provided to assist the jury during its deliberations.

In his confession, defendant admitted selling drugs for the decedent, who was a relatively large-scale distributor of cocaine. The cocaine came from Columbians in New York. A dispute with the Columbians developed over the adulteration of approximately ten kilograms of cocaine with baking soda. According to defendant, the decedent and his associate returned the adulterated drugs in lieu of cash owed the Columbians. The Columbians hired several hit men, who were to recover the cash and kill both drug dealers. Defendant admitted that one of the hit men asked him to join them and "watch his back." Defendant agreed, but stayed outside and acted as a lookout.

The men entered the decedent's house, held members of his family hostage, killed decedent, and seriously injured his associate. Upon completion of the crime, the men went to defendant's apartment with a brown paper bag containing $19,000 in cash. From that money, they gave defendant $800.

In his direct appeal, defendant alleged that his trial counsel provided ineffective assistance by failing: (1) to call any witnesses; (2) to meet with defendant sufficiently before trial to prepare properly; (3) to cross-examine many State witnesses and, when he did so, performing a woefully inadequate examination; and (4) to object to the jury charge concerning accomplice liability. We determined that none of his allegations met the two-prong test for determining ineffective assistance, which was enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 51-53 (1987).

The Supreme Court denied defendant's petition for certification. State v. Alvarado-DeLeon, 180 N.J. 358 (2004).

Defendant filed a pro se PCR petition. He was assigned counsel, who supplemented the briefing and raised additional issues. On April 20, 2007, the PCR judge denied defendant's request for post-conviction relief, finding that defendant had failed to establish that he was denied the effective assistance of trial or appellate counsel. Defendant appeals that determination.

II

Defendant raises the following issues with respect to the denial of his PCR petition:

POINT I- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A) TRIAL COUNSEL FAILED TO CALL ESSENTIAL WITNESSES TO TRIAL AND AT THE MIRANDA HEARING.

B) TRIAL COUNSEL FAILED TO CROSS-EXAMINE IN AN EFFECTIVE MANNER.

C) TRIAL COUNSEL FAILED TO OBJECT TO A JURY INSTRUCTION WHICH AMOUNTED TO AN ULTIMATUM AND FAILED TO VIGOROUSLY PURSUE A MISTRIAL MOTION BASED ON THE INSTRUCTION.

D) TRIAL COUNSEL FAILED TO OBJECT TO THE JURY CHARGE ON ACCOMPLICE LIABILITY.

E) TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT.

F) TRIAL COUNSEL FAILED TO DISCUSS WITH DEFENDANT HIS RIGHT TO TESTIFY.

G) TRIAL COUNSEL FAILED TO ARGUE THAT DEFENDANT'S ARREST WAS INVALID AS A CONSEQUENCE OF THE TAINTED CONFESSION.

H) TRIAL COUNSEL FAILED TO PREPARE FOR TRIAL AND ONLY CALLED ONE WITNESS.

I) TRIAL COUNSEL FAILED TO HIRE AN APPROPRIATE EXPERT.

POINT II- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV- DEFENDANT'S CONFESSION SHOULD HAVE BEEN SUPPRESSED.

POINT V- THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT VI- THE LOWER COURT ORDER MUST BE REVERSED SINCE THE SENTENCE SHOULD HAVE BEEN REDUCED.

A) THE SENTENCE IS EXCESSIVE AND ILLEGAL.

B) THE IMPOSITION OF CONSECUTIVE SENTENCES IS ILLEGAL AND UNJUSTLY HARSH.

C) THE IMPOSITION OF A PERIOD OF PAROLE INELIGIBILITY IN ACCORDANCE WITH NERA AND THE IMPOSITION OF CONSECUTIVE SENTENCES VIOLATES DUE PROCESS AND THE RIGHT TO A TRIAL BY JURY BECAUSE AGGRAVATING FACTORS WERE NOT FOUND BY A JURY.

POINT VII- THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PROSECUTOR WITHELD EXCULPATORY EVIDENCE WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT VIII- DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT IX- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4 AND -5.

Having reviewed defendants arguments, the State's responses, and the record on appeal, we find defendant's arguments to be without merit and not warranting an extended discussion in a written opinion on appeal. R. 2:11-3(e)(2). We briefly add only the following.

Most of defendant's contentions, including ineffective assistance of trial counsel, are procedurally barred pursuant to Rule 3:22-4 and -5, because they either were or could have been raised on direct appeal. In apparent recognition of the bar, defendant contends that, in addition to trial counsel, his appellate and PCR counsel were ineffective. We apply the same standards in considering the allegations with respect to appellate and PCR counsel as we did with respect to trial counsel on the direct appeal. See State v. Loftin, 191 N.J. 172, 197-98 (2007).

Defendant contends that both trial counsel and PCR counsel were ineffective because they failed, respectively, to call or provide an affidavit from his girlfriend Joanne Baez Matos. According to defendant, she would have recanted her statement to the police that defendant told her he had been at the scene of the crime. He criticizes PCR counsel for failing to attach a copy of Matos's affidavit. However, defendant has never demonstrated that there was such a signed affidavit or that Matos has in fact recanted her statement to police. And, in light of defendant's own confession, there is no reason to believe that a recantation by Matos would have produced a different result, especially inasmuch as she never appeared as a witness for the State.

We address briefly two of the issues that were not raised on direct appeal, which defendant argues demonstrate appellate counsel's ineffectiveness. They are: (1) failure to object to the jury instructions given by the trial judge after the jury announced itself deadlocked and (2) failure to argue that defendant's arrest was the result of a tainted confession.

In State v. Nelson, 304 N.J. Super. 561, 562-63 (App. Div. 1997), we reversed a guilty verdict reached following impasse instructions that "had the clear capacity to alter the deliberation process and ultimately result in a guilty verdict." The jury in Nelson informed the judge that it had reached an impasse. The judge's subsequent instructions to the jury concluded by stating that:

I am going to send you back to deliberate for a little bit longer. We don't have that much longer, at least maybe another forty-five minutes or so. And if you're still deadlocked at the end of that period, then I will bring you back in, and I will probably declare a mistrial and the matter will have to be tried over.

. . . .

. . . Perhaps another forty-five minutes will do it. If not, then we'll bring you back in about forty-five minutes and excuse you for the day, excuse you from service on the jury obviously.

[Id. at 564.]

Approximately forty-eight minutes after this instruction, the jury returned with a unanimous verdict of guilty. Ibid. We found that it was "appropriate here for the trial judge to advise the jurors to continue deliberations when they first reported an impasse," but "it was coercive to state further that the jury would only have forty-five minutes to deliberate." Id. at 565-66.

In the case now before us, the jury informed the trial judge that it had reached an impasse by a note stating: "Judge, we are at an impasse at this verdict. No way are people going to change their minds on the small piece of evidence presented to us." The judge recharged the jury and asked the foreman if the jury could "go back and continue [] deliberations," to which the foreman replied "[y]es, your Honor." The judge told the jury that they would "deliberate till four, if necessary. Then we'll consider again tomorrow."

At approximately 3:30, the jury returned another note, stating: "We are still at a big impasse. At this point it seems futile to continue. We are at a hung jury. . . . All twelve agree, your honor, that no progression has been made. We haven't progressed since [the beginning of deliberations]." Defendant's trial counsel moved for a mistrial. Instead of granting that motion, the judge called the jury back to court and stated that deliberations "would not go beyond tomorrow. I can assure you of that." He asked if they would "be willing to return to [the] court tomorrow and give it [a] final effort to attempt to reach a decision on each of the charges in [the] indictment." The jury agreed to try again the next day. The judge then stated: "If you're satisfied that you're not making any headway, just give me the note at that point and I will then go to the next step." Finally, the judge asked the jury to "come back tomorrow and deliberate at least starting at 9:00" to which it agreed.

Defendant contends that the "court's instruction to the jury was similar to the instructions held to be coercive in State v. Nelson." Further, defendant states that the "charge given by the trial court essentially forced the jury to rush in order to reach a verdict" and "trial counsel was ineffective in failing to object to this instruction." Consequently, he argues, his appellate counsel was derelict in not raising the issue on appeal.

The State contends that "the trial court's remarks to the jury were solicitous and respectful and in no manner were offered or intended to force a conclusion that did violence to the conviction of any individual juror." The State argues that the present facts are in "stark contrast" to those of Nelson and that "the trial court did not impose any limitation upon the jury; instead, it merely indicated that it would not require the panel to stay beyond the day it had previously told them it would conclude their service." The State concludes that "[n]othing about the trial court's demeanor or instructions leads to a finding that the jury's verdict . . . was the product of threat or force" and that "trial counsel had no basis upon which to object to the charge given by the trial court." At argument before the PCR court, the State referred to the trial court judge's instructions as being "nothing but overly solicitous."

The PCR judge determined that, while not barred by Rule 3:22-5, this issue "could have reasonably been raised in a prior proceeding" and is barred under Rule 3:22-4. Furthermore, in analyzing the trial court's charge, the PCR judge determined that the trial judge

never tells them it's going to be . . . a mistrial. He doesn't tell them what the next step is, he just tells them that they'll go to the next step. He doesn't tell them even he doesn't even say to them that I'm going to dismiss you if you don't finish it by tomorrow. He just tells them that they'll take the next step, whatever that might be.

Therefore, I don't think that he put a time limit on them of any time; I don't think that if this case had if this issue had been brought up by the appellate counsel it would have changed the appellate court's reasoning. Therefore, I don't think that there was ineffective assistance of appellate counsel. And that portion of the motion is also denied.

As such, the PCR judge denied this claim. We agree with his decision.

The instructions given by the trial judge were permissible under State v. Czachor, 82 N.J. 392 (1980), and did not constitute the coercion of the forty-five minute deadline in Nelson. Because we conclude that the issue would not have been successful on appeal, appellate counsel's failure to raise the issue does not satisfy the Strickland test.

With respect to his confession, defendant claims that "he was not advised of his rights until after the interrogation had commenced," that "he was in jail at the time the rights card was signed," and "that authorities failed to ask him whether or not 'he understood each question as it was read to him' and failed to ascertain whether [he] was literate and the extent of his education." He also alleges that examination of the statement he gave "question by question" will show "inconsistencies."

The record supports the findings of the trial judge that the requirements of Miranda were satisfied. When defendant gave his statement, he was questioned in Spanish because he "spoke very little English." There is no question that defendant was "in custody" and "under arrest" during the entirety of the questioning, because it had been discovered before questioning began that there was an outstanding warrant against him. The investigator who read defendant his Miranda rights testified that she "advised him of his Miranda rights" and "did not do anything with respect to questioning him prior to advising him of his Miranda rights." She testified that defendant had no trouble communicating, was "very conversational," and appeared to be of at least average intelligence. She also testified that she read defendant his Miranda rights, in Spanish, from a card that was signed by defendant and entered into evidence. She also testified that defendant asked for explanations if he did not understand a word that was used and it was explained to him. The investigator read defendant his rights "three times within approximately 12 hour[s]."

The language used by the investigator to inform defendant of his rights was in conformity with the requirements of Miranda. Defendant has not demonstrated any conduct during the interrogation that was improper. The fact that defendant was under arrest and in jail at the time he signed the Miranda card does not cause his subsequent statement to be inadmissible, nor do any inconsistencies in his statement implicate his Miranda rights. See State v. Nyhammer, ___ N.J. ___, ___ (Feb. 3, 2009) (slip op. at 21-28). Consequently, a challenge to the voluntariness of the statement would not have been successful on appeal and appellate counsel's failure to raise the issue on appeal did not constitute ineffectiveness of counsel under Strickland.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-5416-06T4

February 23, 2009