STATE OF NEW JERSEY v. CARLOS FEAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS FEAL,

Defendant-Appellant.

________________________________

November 13, 2013

Submitted November 6, 2013 - Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-10-1227.

Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Jeremiah E.Lenihan, SpecialDeputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Carlos Feal appeals from the trial court's denial of his application for post-conviction relief ("PCR"). The PCR application was considered in the wake of the Supreme Court's reinstatement of defendant's conviction on direct appeal. See State v. Feal, 194 N.J. 293 (2008) (rejecting defendant's claim that he was entitled to a new trial under a retroactive application of State v. Daniels, 182 N.J. 80 (2004), with respect to the prosecutor's improper closing argument suggesting that defendant had "tailored" his trial testimony).

Because the relevant facts and background have already been set forth in the Supreme Court's decision and in our prior unpublished opinions1 on direct appeal, we need not repeat them at length here. After a 2003 jury trial, defendant was convicted of first-degree murder of his girlfriend with a firearm, N.J.S.A. 2C:11-3(a)(1). He was also found guilty of two related weapons offenses. The trial court imposed a forty-year custodial sentence, subject to a thirty-year period of parole ineligibility.

To establish that defendant shot the victim purposefully, the State presented testimony at trial from a ballistics expert and from the medical examiner who had performed the autopsy. The ballistics expert examined a projectile recovered from the scene of the shooting, and concluded that it had been fired from a revolver. The ballistics expert further opined that a revolver could not be fired without a finger exerting some force on the trigger.

The medical examiner determined that the bullet had entered the interior aspect of the victim's left shoulder and that the exit wound was above her waistline on the right side. According to the medical examiner, the bullet had passed through the chest cavity, including the heart and a lung. The medical examiner also noted that there was a fresh contusion on the victim's scalp, which was consistent with a blunt force caused by the butt of a gun.

During her examination, the medical examiner responded to several hypothetical questions posed by the prosecutor, essentially delving into whether the autopsy findings were consistent with the State's theory that defendant had stood over the victim and shot her while she was in a seated position. The medical examiner did not state how the gunshot wound occurred based on its trajectory, but only responded to whether the hypothetical questions posed by the prosecutor were or were not consistent with the bullet's course.

Defendant took the stand at trial. He contended that the gun had fired accidentally while he was allegedly trying to take it out of the victim's hands. In summation, the prosecutor argued to the jury that defendant's testimony was not credible because he had the chance to tailor it to the testimony of other witnesses he had heard in the courtroom.

On direct appeal, a panel of this court in March 2007 granted defendant a new trial because the prosecutor's "tailoring" statement violated the limitations on such arguments later announced in 2004 by the Supreme Court in Daniels. Feal, supra, slip op. at 11-16. However, on further review, the Court concluded that although the Daniels holding should have pipeline retroactivity in cases such as this one that were on direct appeal when the holding was announced, the Daniels violation in this case was harmless error. Feal, supra, 194 N.J. at 310-13. The Court observed that "the prosecutor's fleeting references to defendant's presence in the courtroom" could not have "led the jury to a result it otherwise would not have reached." Id. at 313.

After his conviction was reinstated by the Supreme Court's decision and after our May 2008 supplemental opinion denied relief on other issues, defendant filed a PCR petition with the trial court. The central claim of the petition was that defendant's trial attorney was ineffective in allegedly failing to object sufficiently to the medical examiner's responses to the prosecutor's questions, and in failing to cross-examine her adequately, particularly as to the trajectory of the bullet and the significance of the lack of visible gunshot residue on the victim's hands. Defendant also claimed that his attorney on direct appeal was ineffective in failing to raise these issues as evidential points on appeal.

Upon careful consideration of the petition, Judge Stuart Peim (who also had presided over the 2003 trial) rejected defendant's contentions. The present appeal ensued, in which defendant raises the following points:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OBJECT TO THE ADMISSION OF INADMISSIBLE EXPERT TESTIMONY DEALING WITH CRIME SCENE RECONSTRUCTION AND GUNSHOT RESIDUE.

A. INTRODUCTION.

B. JUDGE PEIM'S OPINION DENYING POST-CONVICTION RELIEF.

C. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY WHEN SHE FAILED TO OBJECT TO THE ADMISSION OF EXPERT TESTIMONY BY DR. LINARES WITH RESPECT TO CRIME SCENE RECONSTRUCTION.

D. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY WHEN SHE FAILED TO OBJECT TO THE SCOPE OF THE EXPERT TESTIMONY OF DR. LINARES AND DETECTIVE MAYER WHERE BOTH OF THEM TESTIFIED ABOUT WHETHER THERE WAS GUNSHOT RESIDUE ON THE VICTIM'S HANDS AS NEITHER EXPERT WAS QUALIFIED AS AN EXPERT IN GUNSHOT RESIDUE TESTING.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHEN COUNSEL FAILED TO RAISE ON APPEAL (A) THE ERRONEOUS ADMISSION OF EXPERT TESTIMONY BY DR. LINARES WITH RESPECT TO CRIME SCENE RECONSTRUCTION AND (B) THE SCOPE OF THE EXPERT TESTIMONY OF DR. LINARES AND DETECTIVE MAYER WHERE BOTH OF THEM TESTIFIED ABOUT WHETHER THERE WAS GUNSHOT RESIDUE ON THE VICTIM'S HANDS AS NEITHER EXPERT WAS QUALIFIED AS AN EXPERT IN GUNSHOT RESIDUE TESTING.

POINT III

THE CUMULATIVE EFFECT OF TRIAL COUNSEL'S ERROR AND THE DANIELS VIOLATION WAS TO CREATE THE REASONABLE PROBABILITY THEY MATERIALLY CONTRIBUTED TO THE CONVICTION. THIS COURT SHOULD VACATE THE CONVICTION, OR IN THE ALTERNATIVE, CONDUCT AN EVIDENTIARY HEARING.

Having duly considered these arguments in light of the record and the applicable law, we affirm the denial of PCR relief, substantially for the cogent reasons articulated in Judge Peim's January 18, 2011 written opinion. As Judge Peim soundly concluded, defendant has not met his burden of proving that his prior attorneys were constitutionally ineffective under the well-established standards of Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).

We note that defendant's trial counsel did interpose several objections to the medical examiner's testimony, and also succeeded in getting her to concede on cross-examination that the gun could have been fired with the victim positioned in other ways than posited by the State. We agree with Judge Peim that the medical examiner did not testify beyond the scope of her expertise, see N.J.R.E. 702, and did not comment about invisible gunshot residue that only a ballistics expert could detect or confirm.

We further reject defendant's claim of cumulative error. Moreover, as Judge Peim's thoughtful analysis of the record demonstrates, no evidentiary hearing was required to resolve the PCR issues. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

1 State v. Feal, No. A-0606-03 (App. Div. March 27, 2007) (initial opinion); see also State v. Feal, No. A-0606-03 (App. Div. May 30, 2008) (addressing additional issues on remand from the Supreme Court that had not been addressed in our initial opinion).