STATE OF NEW JERSEY v. JOHN MARTINEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0648-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN MARTINEZ,

Defendant-Appellant.

November 2, 2011

Submitted September 12, 2011 - Decided

 
Before Judges Grall and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 99-07-0885.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (John K. McNamara, Jr., Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant John Martinez appeals from a March 6, 2009 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant and his codefendant Pierre Forbes were convicted of aggravated manslaughter, a lesser-included offense of murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6, and conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b) and N.J.S.A. 2C:5-2. The offenses were merged, and defendant was sentenced to twenty-five years of imprisonment subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant's conviction was affirmed on direct appeal on May 27, 2003. State v. Forbes, No. A-5005-00 (App. Div. May 27, 2003). The Supreme Court denied certification on October 14, 2003. State v. Forbes, 178 N.J. 32 (2003).

Defendant's initial petition for PCR was denied, and he appealed. We dismissed the appeal without prejudice on July 2, 2008, and remanded the matter in order to permit defendant to present new issues to the motion court.

On remand, the new issues were considered and a decision was reached without an evidentiary hearing. The final order, again denying PCR and from which this appeal is taken, was entered on March 6, 2009.

The charges resulted from the October 25, 1998 killing of Salvatore Salierno, whom defendant suspected was romantically involved with his wife. The victim had been found unconscious, bleeding, and near death, face-down on the ground next to his car in the parking lot adjacent to the apartment building where he lived.

On at least two occasions, defendant was overheard threatening Salierno and he had been accused by the victim of making threatening phone calls. Defendant and Salierno had filed cross-complaints against each other in municipal court, which were scheduled to be heard two days after the homicide.

The State's proofs were that defendant initially recruited Richard Forbes to exact revenge on Salierno. Forbes in turn recruited his brother, codefendant Pierre Forbes, and another man, Jeremiah Farmer, to actually assault the victim. After two failed attempts, codefendant and Farmer finally encountered Salierno outside his car and struck him repeatedly with their fists as well as an eight-to-ten-pound metal pipe. The assailants were driven to the scene of the crime by a fourth man, Gerald Gloster.

At trial, Forbes, Farmer, and Gloster testified against defendant and codefendant. Not surprisingly, the defense theory was that Forbes, Farmer, and Gloster were all testifying falsely against defendant and codefendant in exchange for very favorable sentences. In fact, Forbes was not charged with any offense as a result of his involvement with this crime.

Vanyce Forbes, codefendant's sister, who was not on good terms with Forbes, testified that she found a map in Forbes's room labeled "Parsippany[,]" the town where the victim lived, complete with directions regarding public transportation. The map thereafter disappeared. She also testified that codefendant, whom Farmer described as striking Salierno with the metal pipe in his right hand, is left-handed.

Defendant raises the following points:

POINT ONE

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF TRIAL COUNSEL

A. Trial Counsel Failed To Request The Voir Dire Of A Juror Who Appeared To Be Sleeping.

B. Trial Counsel Elicited Evidence Of Other Crimes Perpetrated By Defendant.

C. Trial Counsel Induced Defendant Not To Testify.

D. Trial Counsel Failed to Adequately Object to the Compact Disk, which Contained the Digital Recording of a Conversation Defendant had with Richard Forbes.

POINT TWO

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL

In a pro se submission, defendant adds the following:

Point One:

NEW JERSEY REQUIRES POST-CONVICTION RELIEF CLAIMS TO BE THOROUGHLY INVESTIGATED BY LOWER COURTS BEFORE A RULING ON THE MERITS CAN BE GIVEN

Point Two:

THE PCR COURT ERRED WHEN IT FOUND THAT DEFENDANT WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND THE NEW JERSEY CONSTITUTIONS. (EXPANDS ON COUNSEL'S BRIEF, POINT 1)

A. The PCR Court Erred When it Found That Defendant Was Not Denied The Effective Assistance of Counsel When His Trial Counsel Failed to Challenge The Granting of the State's Request For The Joinder of Defendant Pierre Forbes For Trial

B. The PCR Court Erred When it Found That Defendant Was Not Denied The Effective Assistance of Counsel When His Trial Counsel Failed to Object to The Introduction of The Testimony of Richard Forbes Which Was Replete With False And/Or Inconsistent Statements

Point Three:

THE PCR COURT ERRED WHEN IT FAILED TO FIND THAT THE DEFENDANT DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL, AND FOR APPELLATE COUNSEL'S FAILURE TO PROPERLY CHALLENGE THE INCLUSION OF THE UNAUTHORIZED WIRETAPPING EVIDENCE PRESENTED BY THE STATE (EXPANDS ON COUNSEL'S BRIEF, POINT 1, SECTION "D")

Point Four:

THE PCR COURT ERRED WHEN IT FAILED TO FIND THAT AN INSUFFICIENT AND/OR ERRONEOUS CHARGE WAS GIVEN BY THE TRIAL COURT TO DEFENDANT'S JURY IN REGARD TO THE STATE OF MIND NEEDED TO BE LIABLE FOR THE CRIME OF AGGRAVATED VERSUS RECKLESS MANSLAUGHTER

Point Five:

THE TRIAL COURT ERRED WHEN IT USED DEFENDANT'S PRIOR MISDEMEANOR CONVICTION AS AN AGGRAVATING FACTOR IN ORDER TO SUBSTANTIALLY INCREASE THE SENTENCING EXPOSURE OF DEFENDANT

A defendant must establish two elements to prove ineffective assistance of counsel. 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). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. A defendant must also establish that counsel's deficiency prejudiced the defense by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove 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 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). "[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).

"'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 decisions about trial strategy should not be characterized as ineffective merely because they did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's decisions about trial strategy were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

We turn our attention first to defendant's contention that trial counsel was ineffective by virtue of failing to request the voir dire of a juror who appeared to be sleeping. The argument stems from defense counsel's statement early in this eighteen-day trial:

Trial Counsel: I notice a juror appears to be sleeping. Now she may not be, but maybe we could just take a minute.

Prosecutor: We would like to make an application, so maybe we could excuse the jury. . . .

Court: Okay.

Codefendant's counsel did not join in the application, and the observation is not subsequently mentioned, most likely because the court, misunderstanding the prosecutor's request that he briefly excuse the jury in order to deal with a significant legal issue, instead excused the jurors for the day. The attorneys, apparently inattentive at the moment of dismissal, explained after the jury's departure from the courthouse that they had only needed a brief recess. Although the court went on to address a number of legal issues, counsel's comment was not discussed any further, no doubt because of the confusion over the jury's excusal.

Ordinarily, trial courts must promptly explore claims about inattentive or sleeping jurors in order to protect the integrity of the process. See, e.g., State v. Reevey, 159 N.J. Super. 130, 133-34 (App. Div.), certif. denied, 79 N.J. 471 (1978). That did not occur here, where the issue appears to have been simply overlooked. The trial judge did not respond to defense counsel's statement and the attorneys only discussed other legal issues. Given that the comment was not corroborated in any fashion by codefendant's counsel, or any other participant in the trial for that matter, and that it occurred so early in the proceedings, we conclude that trial counsel's handling of the issue was within the range of adequate representation. Counsel's failure to return to the issue once the jury was out of earshot was a misstep of little consequence to the final outcome after a lengthy trial. It does not establish that trial counsel "was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. 2066, 80 L. Ed. 2d at 693).

Additionally, we note that, as we commented on the direct appeal, there was little possibility that defendant would have been acquitted in light of the overwhelming proofs presented by the State, including, but not limited to, defendant's ongoing conflicts with the victim. The real issue presented to the jury was the degree of crime defendant committed, not whether he was involved. Since no prejudice resulted in any event, we therefore conclude this point has no merit.1

Defendant next contends that his attorney was ineffective because he presented evidence that defendant was involved in a counterfeiting scheme with Forbes. The evidence was introduced to establish an alternative scenario, one in which Forbes, on his own initiative, enlisted the others to assault Salierno in order to curry favor with defendant. The trial court actually referred to the strategy now being objected to as a "double-edged sword."

Ascribing a different motive to Forbes for his orchestration of the assault on Salierno was a strategic decision. That is precisely the type of choice we do not second-guess. Defense counsel developed testimony as part of a strategy that, in light of the strength of the proofs against defendant, falls within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

Lastly, defendant asserts that his attorney was ineffective because he "induced" him not to testify. This claim is not supported by the record. At the close of the State's case, both counsel indicated in open court that their respective clients would not be testifying. The court asked defendant directly if he had the opportunity to discuss his right to testify with his attorney. Defendant responded in the affirmative. In fact, defendant indicated that he wanted the court to give the jury the instruction explaining that he was within his constitutional rights not to do so and that his silence could not be mentioned during deliberations. See Model Jury Charge Criminal, Defendant's Election Not to Testify (revised May 4, 2009). If defendant had any doubts or concerns regarding his decision not to testify, the record establishes that he had ample opportunity to air his concerns. But he said nothing.

Had defendant testified, the State would have had the opportunity to further develop his history of conflicts with the victim, and the jury would have learned of his prior criminal history. Thus defendant's unexceptional decision not to testify falls well within the scope of reasonable strategic decisions outside the purview of Strickland. Furthermore, defendant's bare assertion that he was wrongly compelled to make the decision lacks any support in the record. Cummings, supra, 321 N.J. Super. at 170 (to establish a prima facie case on PCR a defendant must "do more than make bald assertions . . . to demonstrate counsel's alleged substandard performance.").

We now turn to defendant's pro se arguments. Initially, defendant contends that his attorney was ineffective by failing to object to the joinder of his trial with the codefendant. We previously ruled on this precise issue in affirming the denial of the codefendant's PCR petition, concluding that the argument was without merit. See Forbes, No. A-5061-06 (slip op. at 9).

We add only that although defendant at some length discusses the relevant law, he does not identify the actual error or prejudice resulting from a joint trial in his case. Defendant only asserts in conclusory terms that "it was clearly error on the part of the defense attorney and extremely prejudicial to defendant." This claim too is a bare assertion and does not warrant further discussion. R. 2:11-3(e)(2).

Defendant also contends that his attorney was ineffective for failing to object to the introduction of Forbes's testimony as it "was replete with false and/or inconsistent statements." Simply characterizing the testimony as false does not create a legal impediment to the admission of Forbes's testimony at trial. Defendant acknowledges that Forbes was extensively cross-examined. This argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Defendant argues that the trial court erred by admitting the recorded conversation2 between him and Forbes, that admission of the evidence was a violation of the New Jersey Wiretapping and Electronic Surveillance Control Act (Act), N.J.S.A. 2A:156A, and that his trial counsel and appellate counsel were ineffective for failing to address the issue. The State did not present proof, as required under the Wiretapping Act, that the taping of defendant's March 2, 1999 conversation with Forbes was approved by "the Attorney General or his designee or a county prosecutor." N.J.S.A. 2A:156A-4(c). This issue, however, was not raised before the judge on PCR. Despite the general rule barring consideration on appeal, we nonetheless choose to briefly comment upon it. See State v. Robinson, 200 N.J. 1, 20-22 (2009).

While on the stand Forbes was unable to remember some of the specifics of his several meetings with defendant, but he recalled key points, such as that the men discussed the use of a camera with which Salierno's injuries were to be recorded, that defendant provided a map depicting the location of Salierno's home, that threatening phone calls were to be made, and the amount defendant would pay his cohorts for the assault. Forbes's testimony described the entire agreement and his meetings with defendant, in contrast with the one after-the-fact recorded conversation the jury heard, which elicited very little information.

Gloster and Farmer, among others, also testified at trial. In light of the sheer volume of the State's evidence the introduction of one recorded conversation would have had little impact on the outcome. Here, counsel's failure to raise the Act in order to bar one recording's admission at trial, or appellate counsel's failure to raise the issue on appeal, does not establish that there was "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). Because the content of the tape was not pivotal, this claim also fails to meet the Strickland standard.

Defendant's final argument is that his attorney was ineffective by failing to adequately object to the introduction of the compact disc containing a recording of his meeting with Forbes in the absence of expert testimony regarding its admissibility. The point is less than clear and lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

The remaining contentions in defendant's pro se submission were either discussed at length on the direct appeal, such as sentencing issues, or are so lacking in merit as to not warrant further discussion in a written opinion. See R. 3:22-4(a) and R. 2:11-3(e)(2).

In the absence of any prima facie demonstration of ineffective assistance of counsel, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462-63 (1992). On that point we also concur with the Law Division judge.

1 On the decision denying codefendant's PCR appeal, we also found that counsel's failure to follow up on the issue of the sleeping juror did not meet the Strickland standard. State v. Forbes, No. A-5061-06 (App. Div. Nov. 18, 2008) (slip op. at 4).

2 No transcript was provided of the recording.