STATE OF NEW JERSEY v. SERGIO RODRIGUEZ

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0589-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SERGIO RODRIGUEZ,

Defendant-Appellant.

________________________________________________________________

October 27, 2010

 

Submitted September 13, 2010 - Decided

 

Before Judges Lisa, Reisner and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-01-0102.

 

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

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief; Barbara A. Rosenkrans, Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Sergio Rodriguez, appeals from the August 4, 2008 order denying his petition for post-conviction relief (PCR). Defendant was convicted of felony murder, N.J.S.A. 2C:1-3(a)(3), and other related offenses. He was sentenced on July 14, 2000 to thirty years imprisonment without parole for felony murder. He received consecutive sentences for some other offenses, and is serving an aggregate term of thirty-eight-and-one-half-years imprisonment subject to a thirty-six-year parole disqualifier.

We affirmed defendant's conviction and sentence, State v. Rodriguez, No. A-1894-00 (App. Div. February 17, 2004), and the Supreme Court denied defendant's petition for certification on June 4, 2004. State v. Rodriguez, 180 N.J. 452 (2004). In May 2005, defendant filed a pro se PCR petition, which was dismissed without prejudice on May 11, 2007.1 The petition was reinstated on May 28, 2008. After hearing oral argument on August 4, 2008, the judge denied the petition and declined to conduct an evidentiary hearing. The judge issued an order to that effect, and this appeal followed.

In the brief filed by his attorney, defendant argues:

POINT I

 

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

 

A. Trial counsel failed to permit defendant to testify at the Miranda2 hearing.

 

B. Trial counsel failed to move to exclude mention of defendant's nickname from the trial.

 

C. Trial counsel failed to move to dismiss the case on the basis of the [S]tate's opening.

 

D. Trial counsel failed to move to sever defendant's trial from that of his co-defendants.

 

E. Trial counsel failed to investigate potential witnesses to exculpate defendant.

 

F. Trial counsel failed to object to the testimony of Alfonso Siquencia.

 

G. Trial counsel failed to conduct himself in a professional manner in front of the jury.

 

H. Trial counsel failed to properly prepare for trial.

 

I. Trial counsel failed to properly advise defendant that he should be present at trial.

 

J. Trial counsel failed to argue self-defense.

 

K. Trial counsel failed to move for a mistrial.

 

L. Trial counsel failed to object to the [S]tate's summation.

 

M. Trial counsel was ineffective with regard to the charge and recharge to the jury.

 

N. Trial counsel was ineffective in failing to argue effectively at sentencing.

 

POINT II

 

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

 

POINT III

 

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR.

 

POINT IV

 

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED [NOT PRESENTED BELOW].

 

POINT V

 

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.

 

 

 

POINT VI

 

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

 

POINT VII

 

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

 

POINT VIII

 

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

In a supplemental pro se brief, defendant further argues:

POINT I

 

THE COURT SHOULD REMAND THIS MATTER TO THE LAW DIVISION FOR NEW PROCEEDINGS SINCE PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO COMPLY WITH R. 3:22-6(d) AND FOR FAILING TO OBTAIN AND REVIEW DEFENDANT'S TRIAL FILE PRIOR TO SUBMITTING DEFENDANT'S PCR BRIEF TO THE COURT.

 

POINT II

 

STATE V. A.G.D.3 WAS NEVER RULED TO BE APPLIED PURELY PROSPECTIVELY AS IT WAS APPLIED TO A.G.D. - THE RULING OF A.G.D. SHOULD BE APPLIED IN THIS CASE AS IT WAS IN THE PIPELINE AND APPLYING THE RULING RETROACTIVELY TO PIPELINE CASES WOULD NOT BE A BURDEN UPON THE ADMINISTRATION OF JUSTICE.

We reject these arguments and affirm.

I

Defendant, along with his two co-defendants, Luis DeJesus and Alexis DeJesus, and others became engaged in an altercation with another group of individuals on July 25, 1998 in Newark. One member of the other group was stabbed to death, and two others were stabbed and injured. Defendant admitted to the police that he was present at the scene, although he sought to minimize his involvement; the trial court denied his motion to suppress that statement after a Miranda hearing. Defendant and his co-defendants were tried jointly. All three men were convicted of felony murder and other offenses. All three men appealed, and we addressed their appeals in a single opinion.4 Although the appeal now before us does not involve the co-defendants, a recitation of the facts pertaining to all three perpetrators and the surrounding circumstances is helpful in placing in perspective the issues now before us. Accordingly, we set forth at length the facts developed at trial as recited in our prior opinion:

On July 25, 1998, Alfonso Siguencia lived at 197 Garside Street, Newark, in a second floor apartment. Three or four other families lived in the building. At the time, the electricity was out on the first floor, however, a nearby streetlight illuminated the entrance to the building.

 

At approximately 9:15 p.m., Alfonso and Segundo Romero, returned to Alfonso's apartment after playing volleyball at nearby Branchburg Park with four of Alfonso's nephews and others. Rodrigo Siguencia and Mario Siguencia arrived at Alfonso's apartment first, followed by Claudio Siguencia, Raul Siguencia, and Gonzalo Calle, a friend of Rodrigo's.

 

Before Claudio, Raul, and Gonzalo arrived, Rodrigo and Mario went to Rodrigo's car intending to leave, at which time three males, later identified as defendants, and two females, all apparently in their late teens, walked by. While the two girls waited at a corner, the males approached and, according to Rodrigo, asked them for a cigarette. After he responded that they had no cigarettes, the three males asked Rodrigo and Mario for money. Rodrigo responded that they earned their money and had none to give. A fight then broke out. Alfonso who had witnessed these events from his porch got up and walked over to the scene where his nephews and the three males had gathered. At this point, Claudio, Raul, and Gonzalo arrived.

 

After being hit in the face, Rodrigo took his belt off and chased the three males, who ran away with the two girls. Maria Chaves was with a friend on Garside Street in the vicinity of Alfonso's apartment. She saw the three men and two girls leave and heard one of the men state "go hide because I am coming back." She called the police.

 

After the assailants left, Rodrigo asked Alfonso if he could use Alfonso's bathroom. Alfonso escorted Rodrigo up to his apartment. When Alfonso returned downstairs, he saw a group of about fifteen men arrive. The group, which included the three men involved in the prior incident, attacked all of the Siguencias. Alfonso called for his nephews and friends to come inside; Gonzalo and Raul were the first to enter, and then friends and family followed, but the assailants, armed with knives and bats, followed and kicked open the door to the building.

Gonzalo, who was at the front door, was stabbed in the heart and lung. Claudio, after being hit in the head with a piece of wood by Rodriguez and kicked by three assailants, got up and saw Alfonso with blood on his shirt. Claudio was then stabbed in the back. As three assailants attempted to pull Claudio outside, he managed to escape, with part of his kidney protruding through his knife wound. Claudio also saw defendant Luis DeJesus stab Alfonso.

 

Meanwhile, Alfonso engaged one of the attackers. However, he was hit with a bat from behind and was eventually stabbed in the stomach. According to Alfonso, he saw the three defendants stab Gonzalo and Claudio. As Alfonso attempted to retreat up the stairs to his apartment, he was stabbed in the leg. He was also stabbed in the chest. Claudio also retreated upstairs, but fell unconscious. When Rodrigo returned from the bathroom, he saw Alfonso bleeding and Claudio lying on the second story landing, also bleeding. Mario sustained fatal wounds during the attack.

 

In court, Alfonso identified Luis DeJesus as one of the individuals who stabbed Claudio. He also identified two males who were in the visitors' section of the courtroom as assailants; they were not defendants. He admitted that it was dark on the first floor, but claimed that sufficient light came from outside since the front door was open. He lost consciousness after the attack for three days and was hospitalized for six days.

 

Rodrigo, uninjured, chased after the attackers. He confronted an individual, who was tall with a shaved head, and who produced a knife. Rodrigo retreated across the street. He described one of the attackers to the police as being eighteen to nineteen years old, about five feet six inches tall, wearing a white shirt, jean shorts, and white sneakers. Rodrigo also gave a description of a second assailant as having a thin beard, twenty to twenty-one years old, wearing blue jeans, a white shirt, and a baseball cap. Rodrigo admitted that he did not see who stabbed any of the victims. He also testified that neither he nor Mario made any untoward statements to the two women at the time of the first encounter.

 

Claudio identified Luis in court as one of the individuals who stabbed Alfonso. He believed Rodriguez was the individual who hit him with a piece of wood. However, he could not identify anyone for the police shortly after the attack, because he was still on medication. Nevertheless, he was one hundred percent sure of his in-court identification of Luis. A different individual stabbed him and Alfonso from behind. He did not know who stabbed him nor did he see who stabbed Mario. Claudio lost his kidney and was unconscious and in a coma for several days. He stated that he was "100 percent" certain that the three defendants were responsible for the stabbings.

 

Gonzalo admitted that it was dark inside the building and that he could not see well. He was shown photographic arrays following the altercation but could not identify any of the assailants.

 

According to A. Wayne Williams, M.D., an assistant medical examiner, Mario Siguencia suffered two major injuries. The first, which was fatal, resulted from a stab wound to the left side of his chest that pierced the skin, muscle, two ribs, part of the left lung, the sac surrounding the heart, the heart itself, and a part of the liver. The knife used to kill Mario was a single-edged knife. The second stab wound was in the right groin area.

 

Adelino Benavente, an officer with the Newark Police Department, responded to the scene that night. He noted blood throughout the crime scene and spoke with various witnesses. Manny Garcia, the lead detective on the case, also found blood throughout the site. Garcia prepared photographic arrays, including photographs of Alexis and Luis, and showed them to various witnesses. However, no identifications were made at that time. No bats or knives were found at the scene.

 

The police began to interview individuals whom they believed had information regarding the murder. On August 14, 1998, Quetsie Rivera gave a statement to detective Sheila Hobson of the Essex County Prosecutor's Office. Rivera did not voluntarily speak with the police. Rather, she was arrested based on a tip that she was with Alexis and Luis. Rivera claimed that Hobson told her that if she did not give a statement, the police would take her children from her and she would receive a thirty-year jail term for harboring fugitives[.] She testified that, despite the foregoing, her statements to the police were true.

 

In her statement, Rivera admitted that both DeJesus brothers had stayed at her house following the attack. During their stay, Luis told Rivera that he had hit some guys with a stick and stabbed a couple guys on Garside Street on July 25. He also told her that one victim attempted to run up the stairs in the building, that he ran after the victim and stabbed him in the back. She stated that when Luis described this incident, he was "laughing, like he didn't care." Alexis told Rivera that every time a victim fell to the floor during the attack, he would "shank them up," meaning he would stab them. Rivera described Luis as being chunky on August 14, 1998, with a large stomach and buttocks, "Chinese looking eyes," a beard, and tattoos. Alexis was skinny with no facial hair.

 

Millian Santiago was interviewed by the police on August 20, 1998. She was eventually charged with harboring fugitives and obstructing justice. However, these charges were reduced and resolved in municipal court, where she was given a probationary sentence. Santiago also claimed that she did not give her statement willingly. She too claimed that threats were made against her and her family unless she spoke. Specifically, she allegedly was told that DYFS would take custody of her five-year-old handicapped child. Nevertheless, she acknowledged that the statement she gave the police and her testimony in court were truthful. Santiago testified that after the incident Luis and Alexis disappeared for two or three days, but thereafter, they stayed with her for one day.

 

On August 14, 1998, Rodriguez's girlfriend, Yvalisse Rivera, gave a statement to the police. At trial, Yvalisse testified that her statement to the police was untrue, that she gave it only because the prosecutor's office threatened her. Following a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), the judge admitted her statement as a prior inconsistent statement, and it was read to the jury by Hobson.

 

In the statement, Yvalisse claimed that she and another girl, "Tabitha," were with the three defendants, returning from a pizzeria, when they saw a group of Hispanics near the corner of Fourth and Garside on July 25. Luis made fun of them, since they spoke a different dialect of Spanish. The three defendants crossed the street after one of the Hispanic individuals asked why Luis made fun of them. A few minutes later, Yvalisse saw one of the Hispanics remove his belt and swing at her friends. The three defendants and two women ran away. She heard Luis tell one of the Hispanics to wait for him.

 

Alexis and Luis enlisted two men to join them. Luis had a double-bladed knife (i.e., sharp blades on both sides), and one of the two new men had a bat. Yvalisse begged Rodriguez, whose nickname was "Macho," not to return to 197 Garside, however, he told her he had no choice. Yvalisse accompanied the group to 197 Garside. She saw Luis force open the door to the building and he and the others entered the building. She saw some men run upstairs in the building, although she could not identify them.

 

Yvalisse next saw the three defendants after the fight. Luis had a bloody knife, and Rodriguez had an expression on his face, which led her to believe that something bad had happened. She said her "heart just dropped." She also noted that although Alexis left wearing sneakers, he had none on his return. Rodriguez told her that he fought with one of the Hispanics they had met previously. He told her that one victim was stabbed on the stairs and another one was stabbed in an upstairs apartment. Rodriguez also told her that three or four people got stabbed.

 

Also in her statement, Yvalisse revealed that Luis said what he did was "cool," as if he had no conscience. Luis further told her that a guy hit him, "so that nigger had to wear it." Luis also confided that he had stabbed someone. Finally, Luis joked that the victims were "crying on the floor and jumping up like fish." Yvalisse also related that, at the time of her statement to the police, Rodriguez was in Puerto Rico because his sister was ill.

 

Yvalisse identified both Luis and Alexis in photographic arrays. No photographs of Rodriguez were shown to her. Yvalisse testified in court that her statement was based on responses suggested to her by Hobson during the interview. Yvalisse also testified that the police entered her home in the early morning hours on August 14 looking for Rodriguez, without a warrant.

 

On August 19, 1998, Rodriguez turned himself in. Yvalisse was present at the time. Rodriguez was interviewed and repeated the story that he and the other defendants, together with the two women, ran into the Siguencias near 197 Garside. He conceded that he and the others returned to Alfonso's apartment after the initial disagreement, however, he claimed that he had no weapons other than his teeth, which he used during the fight that ensued. He claimed he saw no weapons and did not know who had weapons or who committed the stabbings. The following day, he took a planned trip to Puerto Rico to be with his ailing sister.

 

Alexis and Luis were arrested together on August 25, 1998, and interviewed by Garcia. Alexis stated that he was walking home from a pizzeria with his brother Luis, his wife Tabitha, Rodriguez, and Rodriguez's "wife" (Yvalisse), when they passed the Siguencias. One of the Siguencias got fresh with Rodriguez's wife. Nevertheless, according to Alexis, the group continued to walk until he was hit with a belt buckle. He ran, but saw that there was a brief fight behind him.

 

He then returned with a group of individuals. He saw some of them run into the house, at which time he stayed outside. He saw no fighting inside or outside, noting that it was dark inside the building. He fought with no one, saw no knives, and eventually returned home. He saw no stabbings and denied stabbing anyone. The next day he learned about the stabbing, and that the police were looking for him. He stayed with friends until he was arrested.

 

Luis related a similar version respecting the first encounter with the Siguencias. When he and the others returned to 197 Garside, the Siguencias were on the porch waiting, and a fight ensued. He was punched and then left. He saw no stabbings, knives, or blood at the scene. After learning later that someone was killed, he became scared and went into hiding until his arrest.

 

[State v. Rodriguez, supra, (slip op. at 5-16).]

 

II

 

On direct appeal, defendant argued that his conviction was against the weight of the evidence, the jury charges on accomplice liability were improper because the judge did not incorporate facts explaining defendant's position, the jury charge on the identification issue was improper because the judge failed to note the numerous inconsistencies in the testimony regarding the identification of defendant, the judge erred in permitting the State to amend the indictment to allege felony murder based on the predicate offense of burglary rather than aggravated assault, and the sentence was excessive because the judge abused his discretion in weighing aggravating and mitigating factors. Defendant also argued that various summation statements made by the prosecutor constituted prosecutorial misconduct. Specifically, defendant complained of comments to the effect that the jury is the conscience of the community and must decide whether defendant is guilty, the comment that identification of him was not seriously in dispute, and the comment that defendant's statement to police that he was at the scene of the fight but did not know anyone was stabbed is not credible. We considered and rejected all of these arguments.

In his PCR proceeding, defendant's PCR counsel raised all of the issues now raised in Point I in this appeal. In addition, defendant filed a pro se supplemental brief in the PCR proceeding, in which he augmented the arguments raised by PCR counsel regarding trial counsel's failure to allow him to testify at the Miranda hearing and to call an expert witness at the Miranda hearing, and trial counsel's failure to object to the use of the nickname "Macho." Defendant also argued that he received ineffective assistance of appellate counsel for failing to raise the nickname issue on appeal. Additionally, defendant argued that his appellate counsel was ineffective for failing to raise on appeal the issue that the police violated his rights by failing to inform him that a complaint had been signed charging him with murder prior to taking a statement from defendant, as a result of which his waiver of his Miranda rights could not, as a matter of law, have been knowing and voluntary under the holding in A.G.D., which was decided while defendant's direct appeal was pending.

The same judge who had presided over the Miranda hearing and the trial also presided over the PCR proceeding. After hearing oral argument on August 4, 2008, the judge issued a thorough oral decision rejecting all of defendant's PCR claims. The judge denied defendant's petition and denied his request for an evidentiary hearing.

III

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the New Jersey Constitution, a criminal defendant is entitled to "reasonably competent counsel." State v. Fritz, 105 N.J. 42, 58 (1987). Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. In order to rebut this presumption, a defendant must prove that counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, an attorney's strategy decision should not be characterized as ineffective assistance merely because the decision did not produce the desired result. See id. at 37-38. Moreover, the defendant bears the burden of proving, by a preponderance of the evidence, that counsel's strategy decisions were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52. Furthermore, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Finally, PCR petitions are subject to certain procedural bars. Rule 3:22-4 bars a claim if "[the defendant] could have, but did not, raise the claim in a prior proceeding." State v. Preciose, 129 N.J. 451, 459 (1992). The rule provides for certain exceptions under which a claim may be raised in a PCR proceeding even if it could have been raised in a prior proceeding. These exceptions shall apply only in "exceptional circumstances," and the defendant bears the burden of proving that an application of the Rule 3:22-4 bar would result in fundamental injustice. State v. Mitchell, 126 N.J. 565, 587 (1992).

Rule 3:22-5 is a second procedural bar. Under this provision, "[a] prior adjudication upon the merits of any ground for relief is conclusive" and may not be relitigated on PCR. In deciding whether to apply Rule 3:22-5, the issue is whether the claim made in the PCR proceeding and the claim previously asserted "are either identical or 'substantially equivalent.'" State v. Marshall, 173 N.J. 343, 351 (2002). "If the claims are substantially the same, the petition is procedurally barred; if not, the claim of error should be adjudicated when there is no other reason to bar it." Ibid. Rule 3:22-5 may be relaxed where the constitutional issues raised are of substantial import. State v. Johns, 111 N.J. Super. 574, 576 (App Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972). This exception is, however, "very limited." State v. Franklin, 184 N.J. 516, 528 (2005).

IV

Against this backdrop and applying these legal principles, we now consider the arguments raised on appeal. We begin with Point I in defendant's counsel's brief, in which fourteen assertions of ineffective assistance of trial counsel are raised.

In Point I.A, defendant argues that his trial counsel was deficient for failing to permit him to testify at the Miranda hearing. We defer discussion of this issue to the next section of this opinion. We will discuss it together with the argument defendant raises under Point II of his supplemental pro se appellate brief, dealing with the A.G.D. issue.

In Point I.B, defendant argues that his trial counsel was deficient for failing to move to exclude the use of his nickname, "Macho," during the trial. This issue could have been raised on direct appeal, and it is procedurally barred under Rule 3:22-4. Further, the argument lacks substantive merit. Many of the witnesses knew defendant only by his nickname and referred to him as "Macho" in their statements. Therefore, the use of the nickname was relevant to establish defendant's identity. State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998). Further, we are unpersuaded by defendant's claim of prejudice. The nickname is not inherently pejorative. Yet, defendant contends that, in the context of this case, use of the name was prejudicial. The overwhelming evidence was that all three perpetrators, after the initial encounter on the street with the other group, returned to continue the altercation. In light of that evidence, there was little or no prejudice in the use of the nickname. Accordingly, we agree with the PCR court's conclusion that "enforcement of the bar works no injustice, fundamental or otherwise, and denial of relief is not contrary to either constitution."

Point I.C asserts ineffectiveness of trial counsel for failing to move to dismiss the case on the basis of the prosecutor's opening statement, during which he said, in describing the events, that the peace of the evening was interrupted when the three defendants and a couple of their girlfriends came up to a group of people and "who knows what actually happened." This issue could reasonably have been raised on direct appeal and is procedurally barred under Rule 3:22-4(a)(1). Further, it lacks merit. Contrary to defendant's argument, this isolated phrase did not signify that the State admitted it could not prove what happened that night that would form the basis of a criminal conviction for defendant.

In Point I.D, defendant criticizes his trial counsel for not moving for severance. This, too, could reasonably have been raised on direct appeal and is barred under Rule 3:22-4(a)(1). It is also substantively meritless because a joint trial is preferable when the charges emanate from the same or related acts and the factfinder will consider much of the same evidence in determining the guilt or innocence of each defendant. State v. Brown, 118 N.J. 595, 605 (1990). This was such a case. Any motion to sever would have surely been denied.

In Point I.E, defendant alleges that his trial counsel was ineffective for failing to investigate potential witnesses to exculpate defendant. In support of his PCR petition, defendant argued that his attorney should have sent an investigator to interview the witnesses that ultimately testified at trial. He contended that "[t]hese witnesses that were present at the scene could have supported the fact that no weapons were visible, further supporting the petitioner's assertion that he had no knowledge of any weapons." The witnesses, of course, testified at trial and were subject to cross-examination by all defense counsel. Defendant has offered no affidavits or certifications from any of these witnesses to establish that they would have provided some testimony other than that which they gave at trial and which would have been exculpatory. Such "bald assertions," unsubstantiated by appropriate affidavits or certifications, cannot provide the basis for a finding of ineffective assistance of counsel, and do not warrant an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170.

Under Point I.F, defendant argues that his trial counsel was deficient for failing to object to certain testimony of Alfonso Siguencia. Defendant argues that Siguencia testified that "he" hit him in the head with a bat, without specifying that Siguencia was referring to defendant. It may well have been sound trial strategy to see if the victim could specify which defendant. However, objecting on that basis could easily have worked to defendant's disadvantage if the victim testified that it was defendant who wielded the bat. We will not second guess the strategic decision to leave this inconclusive testimony unchallenged. There was no deficient conduct in this regard.

In Point I.G, defendant argues that his trial counsel was deficient by failing to conduct himself in a professional manner in front of the jury. In Point I.H, defendant argues that his trial counsel was deficient because he "made no effort to obtain defendant's arrest photograph until the midst of trial." In Point I.I, defendant argues that his trial counsel failed to properly advise defendant that he should be present at trial. In Point I.J, defendant claims that his trial counsel was deficient for failing to argue self-defense. In Point I.K, defendant complains that his trial counsel should have moved for a mistrial when defendant threatened the prosecutor saying, "Slapping the shit out of his ass, man."

These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). It is sufficient to note that there is no evidence to suggest that trial counsel's aggressive questioning of witnesses on behalf of his client constituted unprofessional conduct; defendant has made no showing as to how his arrest photograph could have aided his defense; the record reveals that trial counsel clearly advised defendant that he should remain in the courtroom during trial, and the judge questioned defendant to assure that he realized the potential adverse consequences of absenting himself; the defense of self-defense was not applicable in this case; and after defendant's vulgar outburst, the judge gave an immediate and effective curative instruction, telling the jurors that sometimes emotions run high and that their verdict must be based on the evidence alone.

The final three points, I.L (failure to object to the State's summation), I.M (asserted ineffectiveness with regard to the jury instructions), and I.N (failing to argue effectively at sentencing) deal with issues that were raised and adjudicated on direct appeal and they are procedurally barred by Rule 3:22-5. Defendant has offered no basis upon which the "very limited" exception to this bar should apply. The issues raised on these points in the PCR proceeding are either identical or substantially equivalent to those resolved on direct appeal. That resolution is deemed conclusive and cannot be relitigated in a collateral proceeding.

In Point IV of defendant's appellate counsel's brief, we are urged to reverse because of ineffective assistance of PCR counsel. The asserted ineffectiveness is that PCR counsel did not review the trial file in preparing his PCR brief and that PCR counsel failed to undertake his responsibilities to communicate with defendant, to investigate claims and to present all claims insisted upon by defendant. In Point I of his pro se supplemental appellate brief, defendant further argues these same points, with some elaboration. We find the arguments unpersuasive. The record reveals that PCR counsel made diligent efforts to obtain the trial file. Any inability to do so was not a result of deficient conduct on his part. Further, defendant fails to reveal any potentially meritorious issues which PCR counsel would have been able to raise had he succeeded in obtaining the trial file. Further, the record reveals that PCR counsel complied with his obligations under State v. Webster, 187 N.J. 254 (2006), and State v. Rue, 175 N.J. 1 (2002), in presenting the matter to the PCR court.

In Points VI and VII of defendant's appellate counsel's brief, it is argued that reversal is required because defendant's claims are not procedurally barred under Rules 3:22-4 and -5. These arguments do not require separate discussion, as we have discussed them throughout the opinion where applicable.

V

We now deal with the ineffective assistance claims related to the Miranda motion. First, defendant argues that his trial counsel was deficient for failing to permit defendant to testify at the Miranda hearing. He further argues that trial counsel was deficient for failing to call defendant's girlfriend, Yvalisse Rivera, as a witness. Finally, defendant argues that his trial counsel should have called an expert to explain why defendant's statement was not voluntary.

The second issue raised with respect to the Miranda hearing is defendant's contention that his appellate counsel was ineffective for failing to raise on direct appeal the argument that because a criminal complaint had previously been issued charging defendant with murder, failure of the police to advise defendant of the existence of the complaint precluded, as a matter of law, defendant's ability to knowingly and voluntarily waive his Miranda rights. In support of this argument, defendant points out that our Supreme Court so held in A.G.D. on October 9, 2003, two months before his case (and his co-defendants' cases) was submitted to this court on December 17, 2003, and four months before this court rendered a decision on February 17, 2004.

A.

With respect to the conduct of the Miranda hearing, we summarily reject defendant's argument that an expert should have been called. Defendant has produced no report from any such expert, accompanied by an appropriate affidavit or certification. Therefore, this argument fails to satisfy the threshold criteria of Cummings, and is not sustainable.

To place defendant's statement in proper perspective, it must be noted that he presented himself voluntarily at the prosecutor's office in the company of his girlfriend, Yvalisse Rivera. Defendant referred to Rivera as his "wife." She was pregnant with his child. Shortly after the crime, defendant had traveled to Puerto Rico. He contended this was a preplanned trip to visit ailing family members.

Five days prior to defendant's August 19, 1998 statement, Rivera gave a statement of her own to the police on August 14, 1998. Rivera described the events of July 25, 1998 at 197 Garside Street, stating that she and defendant, in the company of the DeJesus brothers and another girl, Tabitha, encountered the other group of individuals on the street. After a verbal argument ensued, one of the individuals from the other group took off his belt and started swinging it. Defendant and the DeJesus brothers began running toward Second Avenue. Rivera and Tabitha walked toward Second Avenue. One of the DeJesus brothers punched one of the other men in the face.

Rivera then gave this account of what happened next:

We jogged up towards them. I was begging Macho not to go back. He said he had no choice, he had to. He also said he wished he was home. Puto [Luis DeJesus] and Frijole [Alexis DeJesus] got two more people along with Macho. Only two of them had weapons. Puto had the knife. I didn't see it before. I saw it after the stabbing. I don't know the other guy who had the bat.

 

Rivera said that defendant did not possess any weapon. She said that Luis DeJesus pushed the door open to the apartment building at 197 Garside Street, and all of the men in his group, including defendant, ran in. She saw some of them run up the stairs, but she could not tell who was doing what once they got inside.

Rivera also described what happened when defendant, the DeJesus brothers, and the other two men exited the building. Luis DeJesus came out holding a bloody knife. Defendant, who looked upset, told Rivera that someone got stabbed. Defendant told her he was fighting with one of the members of the other group inside the building. At no time did she observe defendant in possession of any weapon, either before or after he entered the building, nor did she see any blood on defendant after he exited the building.

Investigator Sheila Hobson of the Essex County Prosecutor's Office took Rivera's statement. Rivera told Hobson that defendant was then in Puerto Rico. Hobson asked Rivera if she would request that defendant contact her. Rivera did so, as a result of which defendant voluntarily presented himself at the prosecutor's office in the company of Rivera. Hobson took defendant's statement as well.

Defendant's statement was consistent with the statement Rivera had given several days earlier. Defendant obviously knew that the police were aware of his presence during the altercation and that he was one of the individuals involved in the verbal dispute on the street and who then went back into the apartment building shortly afterwards. Undoubtedly, Rivera related to defendant what she had told Hobson in her statement. Consistent with Rivera's statement, defendant's statement was self-serving and exculpatory (except to the extent that he placed himself at the scene, which defendant knew was information the police already possessed).

He described an initial verbal dispute, followed by members of the other group chasing defendant and the DeJesus brothers swinging their belts at them. He then described how Rivera pleaded with him "to stay away and not go back there and look for more problems." He nevertheless went back with the DeJesus brothers and the other men. He denied possessing any kind of weapon at any point during the episode, and he denied seeing any of his cohorts in possession of any weapons. He said he was being beaten up by a member of the other group in the first floor hallway. When asked whether he saw anyone run up the stairs to the second floor, defendant responded: "I couldn't see nothing. I was getting so beat up, I couldn't see nothing. I didn't see nobody get stabbed that day."

Defendant said when he left the building he and Rivera walked away from the scene. He went home, and soon afterwards left for his preplanned trip to Puerto Rico. He said he did not learn that anyone got stabbed until Rivera called him in Puerto Rico and informed him. He said he had not talked to anyone other than Rivera about the fight after it occurred. He denied seeing anyone bleeding in the course of the fight.

As we have stated, defendant did not testify at the Miranda hearing, nor did his trial counsel call Rivera or any other witnesses to testify. In his affidavit in support of his PCR petition, defendant said that Rivera told him Hobson wanted to speak to him and that the police knew that he did not stab anyone. In the affidavit, defendant suggested he was under pressure to give a statement because he and Rivera were told that if he did not do so, he would be arrested, and he would go to prison and never see his baby. Defendant contended that although he did not want to give a statement, Rivera, who remained present during the entire time Hobson interviewed him, prevailed upon him to do so. Throughout the affidavit, defendant stated several times that Hobson told him he was only a witness and not a suspect. However, at one point in the affidavit defendant stated that Hobson said he "was not the prime suspect and that she knows [defendant] did not kill anyone." (emphasis added).

Defendant contended in his affidavit that he informed his trial attorney before the Miranda hearing of the circumstances under which he gave the statement as described in his PCR affidavit. Yet, his attorney declined to call Rivera as a witness, and told defendant that "he was not allowing me to testify because he didn't think it would help and that he didn't prepare me to testify so if I testified and said something on the stand it could be used to hurt me in trial." Defendant said in his affidavit he wanted to testify, but his trial counsel "would not let [him]."

With respect to Rivera, defendant's assertions about the matters to which she would have testified are nothing more than the kind of "bald assertions" that we said in Cummings are insufficient to provide a basis for post-conviction relief or to warrant an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. The record contains no affidavit or certification from Rivera. Indeed, it is more likely that she would have testified in a manner consistent with the statement she gave to the police, which did not include the information about any threats by Hobson, pressure by Rivera, or expressions by defendant that he did not want to give a statement.

That brings us to defendant's argument pertaining to the circumstances under which he did not testify at the Miranda hearing. The PCR court found the argument procedurally barred because it could have been raised on direct appeal, and further found that defendant's assertions in his PCR affidavit were nothing more than bald assertions. We do not agree with those findings. The matters contained in defendant's PCR affidavit lie outside the trial record, and are accordingly of the type properly considered in a collateral proceeding. Preciose, supra, 129 N.J. at 460. Further, they are factual statements by defendant based upon his own personal knowledge, and are therefore competent evidence, not the kind of "bald assertions" we found insufficient in Cummings.

In ruling upon the issue in the PCR proceeding, the judge also reasoned that the claim was substantively meritless because defendants rarely testify at Miranda hearings, so trial counsel was merely adhering to the common practice and did not deviate from accepted standards of performance. The judge concluded that second guessing such a strategic decision could not provide a basis for relief in the PCR proceeding.

The judge further noted that during the course of the trial, defendant was very assertive and from time to time spoke out, even when he should not have, on matters of concern to him about the trial proceedings. After the State rested, and defendant had the opportunity to testify, he was questioned by his trial counsel and by the court, and confirmed that he chose not to testify at trial. Based upon this course of events, the judge inferred that if defendant truly wanted to testify at the Miranda hearing, he would have made that known to the court.

We agree with the judge's analysis regarding judicial scrutiny of trial counsel's performance under the "highly deferential" standard applicable to strategic decisions, which should not be subject to the "distorting effects of hindsight." State v. Loftin, 191 N.J. 172, 198 (2007). We temper this agreement, however, because of defendant's statement in his PCR affidavit that he wanted to testify and that trial counsel would not allow him to do so (as opposed to advising him not to do so). Even if this fact could be established at an evidentiary hearing, however, and if it could satisfy the first Strickland prong, we are not convinced that the second prong would be satisfied.

From our review of the record, we conclude there was not a reasonable probability that the result of the Miranda hearing would have been different if defendant had testified. The judge would have had to find credible defendant's proposed testimony that he was pressured into giving the statement because he was told he was not a suspect and because Rivera pressured him because of the alleged threat that if defendant did not give a statement he would be put in jail and would never see his baby. As we stated, defendant presented no corroboration in his written PCR submissions from Rivera as to the accuracy of these allegations. Presumably, therefore, she would not have testified accordingly at an evidentiary hearing, and the absence of her testimony would have certainly given rise to an adverse inference against the truthfulness of defendant's assertion. Further, the judge would have had to have found defendant's testimony more persuasive than that of Hobson and another detective who was present for part of defendant's statement. They testified that defendant was cooperative, was never threatened or coerced in any way, and voluntarily gave his statement after being fully advised of his Miranda rights.

Telling in defendant's PCR affidavit was the contention that Hobson told defendant that he was not a "prime" suspect, clearly signifying a distinction between those who actually did the stabbing and those who played a lesser role in the incident. In this regard, knowing that he was already placed at the scene and in the fracas, defendant's statement was completely exculpatory regarding his role as a potential accomplice. He denied possessing any weapons, seeing any of his cohorts in possession of any weapons, or knowing until days later when he was in Puerto Rico that anyone had even gotten stabbed. These self-serving statements were consistent with those previously given to the police by Rivera.

These circumstances militate against defendant's assertion of coercion. Before voluntarily presenting himself at the prosecutor's office, defendant knew that the investigation by law enforcement placed him in the melee. Defendant's purpose in voluntarily going to the authorities to give a voluntary statement was to minimize his role and potential culpability in the incident.

We therefore conclude that the result of the Miranda hearing would not have been different had defendant testified. We also conclude that admission at trial of defendant's statement was not critical to the State's proofs and that, had there been no statement, the result of the trial would not have been any different.

B.

We now address defendant's second argument with regard to the Miranda hearing, that his appellate counsel was deficient for not raising on direct appeal the argument that the failure of the police to inform him before giving his statement that a criminal complaint had been signed charging him with murder constituted ineffective assistance of appellate counsel. As we stated, A.G.D. was decided on October 9, 2003, while defendant's appeal was pending. His appeal was scheduled for submission to the court on December 17, 2003. Presumably, the parties had already submitted their briefs before the A.G.D. decision. However, after briefs are filed, parties are permitted to communicate with the court, calling the court's attention to the significance of relevant cases decided subsequent to the filing of the brief. R. 2:6-11(d). Defendant argues that failure of his appellate counsel to issue such a communication to the court regarding A.G.D. constituted deficient conduct.

In the PCR proceeding, the judge rejected this contention. Relying on State v. Hollander, 201 N.J. Super. 453, 483 (App. Div.), certif. denied, 101 N.J. 335 (1985), the judge concluded that the A.G.D. holding was intended to apply prospectively only, and would be given no retroactive effect, even as to cases pending in the direct appeal pipeline. The judge found that the circumstances in this case were similar to those we described in Hollander as follows:

We have, of course, already set forth the circumstances surrounding defendant's giving the statement. But we reiterate that he came voluntarily to the police station and even though he was not arrested was fully advised of his Miranda rights before he gave the statement. Further defendant certainly knew he was at least a suspect. He had already been questioned in the matter, had taken a polygraph and had complained of harassment from private investigators. Finally we point out that while defendant may have been a target the police were not obliged to arrest him. It is possible that he might have explained away any information against him.

 

[Ibid.]

 

While we agree with the ultimate result reached by the PCR court on this issue, we do not do so based on retroactivity analysis of A.G.D. In our view, the A.G.D. principles were not violated here. We do not read A.G.D. as prescribing the immutable bright-line rule defendant suggests.

In A.G.D., the defendant was questioned regarding "allegations of sexual abuse that had been asserted against him, but the detective did not specify the charges." A.G.D., supra, 178 N.J. at 59. An arrest warrant had already been issued against the defendant, but the police did not advise him of that fact. Ibid. Defendant then confessed to the crime. Id. at 60. The Court held that "[w]ithout advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of his rights, regardless of other factors that might support his confession's admission." Id. at 68.

In a subsequent case, however, a panel of this court distinguished A.G.D. in circumstances in which the police advised the defendant they had a warrant for his arrest and told him he was being taken to the homicide unit, but did not tell him he had been arrested for the murder of the victim. State v. Henderson, 397 N.J. Super. 398, 404 (App. Div.), certif. granted and certif. denied, 195 N.J. 521 (2008). We declined to extend the A.G.D. principles in those circumstances, where "defendant well-understood why he was arrested." Ibid.

We view the case before us as materially similar to Henderson. Defendant "well-understood" why he was giving a statement. He was doing so to minimize his role in the criminal episode, with full knowledge that the police investigation had already placed him in the altercation, both the initial confrontation on the street and the follow-up fight inside the apartment building.

At the Miranda hearing, Hobson gave conflicting testimony as to exactly what she told defendant about his status at that time. She was cross-examined extensively on that point. She sometimes said she did not recall exactly what she told him. At other times she said she would not have given Miranda warnings if he was merely a witness and not a suspect, and that in giving the Miranda warnings she would have told him he was a suspect. At other times she said she told him he may become a suspect or a defendant. She concluded by summarizing as follows:

Well, I'm not telling you that I didn't tell him. What I am saying to you is prior to giving him his MIRANDA I had to indicate to him that he was either a murder suspect or a defendant in the case, otherwise I would not have Mirandized him. That's what I am saying to you.

When asked after that statement whether that is what she told defendant, Hobson answered, "Yes, I did." On redirect examination, Hobson stated that she had told Rivera "that [defendant] was considered a suspect in the -- the homicide of the individual that had died at 197 Garside."

At the conclusion of the Miranda hearing, the judge made the following factual findings in this regard:

Sheila Hobson advised him that he was a defendant or a suspect of a murder. She indicated that a complaint had previously been drawn against him on or about the 14th of August, as I understand the -- filed on or about that date, some four or five days prior to the arrival of Mr. Rodriguez at the prosecutor's office.

 

She did indicate that she told him that he was either a defendant or a suspect of the murder, but apparently did not tell him of the -- the actual physical complaint and did not recall telling him specifically that he was arrested for murder that day. But, clearly, he knew, according to her testimony, he knew that he was a suspect or a defendant or about to be a defendant in the -- in murder.

This factual finding is supported by substantial credible evidence in the record, and we defer to it. State v. Johnson, 42 N.J. 146, 162 (1964).

Indeed, at trial, various witnesses identified defendant as being one of the individuals in both phases of the conflict. And, Rivera testified at trial. She admitted to the events as she had described them in her statement regarding the first phase of the altercation. She recanted regarding the second phase, when defendant and the others entered the apartment, contending she "wasn't there when they returned," and that although she told Hobson otherwise and what she observed after they returned, it was not true. However, after a Gross hearing, the judge found Rivera's statement to Hobson reliable and allowed it (in redacted form) to be read to the jury. In that statement, Rivera said that defendant, the DeJesus brothers and the two unidentified additional cohorts entered the apartment building, that defendant acknowledged to her that he was fighting with one of the members of the other group, and so forth.

In other words, when defendant gave his statement to the police on August 19, 1998, he was not telling them anything they did not already know. He did so with full knowledge that he was there because the police already knew that information about his role in the incident. He voluntarily presented himself at the prosecutor's office and, after being Mirandized, voluntarily gave the self-serving statement in an effort to minimize his role in the crime. Under these circumstances, defendant was not deprived of his ability to knowingly and voluntarily waive his Miranda rights. As in Henderson, we conclude that notwithstanding the failure of the police to inform defendant of the criminal complaint that had been issued against him, the A.G.D. principles do not require suppression of defendant's statement.

Because we have decided this issue on this basis, we do not address the retroactivity issue. We express no view as to the potential retroactive application of A.G.D. to this case. See,e.g., State v. Knight, 145 N.J. 223 (1996); State v. Abronski, 145 N.J. 265 (1996).

VI

Defendant's remaining arguments, as set forth in his appellate counsel's brief, are listed under Point III (reversal is required because of cumulative errors), Point V (reversal is required in light of numerous additional errors), and Point VIII (reversal is required because the PCR court erred in denying the request for an evidentiary hearing). The first two of these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As to denial of an evidentiary hearing, we have already explained that, even if there was deficient conduct in connection with the Miranda hearing, accepting as true defendant's competent factual assertions based on his own personal knowledge, the result of the proceedings would not have been different. Therefore, there was no need for an evidentiary hearing.

Affirmed.

1 Although the "MOTION SEEKING POST-CONVICTION RELIEF PER R. 3:22-1" filed by defendant pro se bears the date of May 22, 2006, the affidavits submitted in support of the petition were dated by the notary public as May 23, 2005. The record also contains a deficiency notice from the Essex County Criminal Division Manager to defendant dated June 15, 2005, returning defendant's PCR petition to him because the application was not filled out completely and lacked certain supporting documentation. Therefore, it appears that the petition was timely filed within five years of defendant's conviction. In any event, the record contains a letter from the Essex County Prosecutor to the trial court dated November 20, 2006 stating that "[t]he State waives any Time Bar objections caused by the delay in filing this PCR." Accordingly, we reject the State's present argument that the petition should be dismissed as time-barred.

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

3 State v. A.G.D., 178 N.J. 56 (2003).

4 The appeal of Luis DeJesus bore Docket No. A-2741-00. The appeal of Alexis DeJesus bore Docket No. A-5736-00.