STATE OF NEW JERSEY v. WILLIAM RIVERA

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM RIVERA,

Defendant-Appellant.

________________________________________

November 21, 2014

Submitted October 28, 2014 Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-09-1153.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Rivera appeals from an order entered by the Law Division on November 15, 2012, denying his petition for post-conviction relief ("PCR"). We affirm.

Defendant was charged under Union County Indictment No. 04-09-1153, with first-degree murder of his wife Ana Rivera ("Ana"), contrary to N.J.S.A. 2C:11-3a(1); and second-degree desecration of human remains, contrary to 2C:22-1a(2). Defendant was tried before a jury. At the trial, the State presented evidence which established that, on the evening of February 28, 2004, defendant was residing with his brother and his mother in a house in Plainfield.

Late in the evening, defendant woke his brother. Defendant had wounds on his neck and chest. Defendant said that Ana tried to kill him. He told his brother that Ana was dead. The police were called and they went to defendant's bedroom, where they found Ana's dead body. According to one of the officers who responded to the scene, the victim had been sliced almost in half, from the neck down to her vagina. There was a knife in her hand.

The Union County medical examiner testified that Ana died as a result of certain stab wounds that were inflicted with a knife, and additional stab wounds were inflicted after she died. The medical examiner also said that Ana's breasts and genital organs had been cut and removed after her death.

Defendant did not testify at trial, but presented testimony from Dr. Robert Latimer ("Latimer"), a forensic psychiatrist, in support of his insanity defense. Latimer stated that, at the time defendant killed Ana and desecrated her remains, he "was suffering from an acute psychiatric condition known as brief psychotic reaction or disorder[.]"

The doctor said that he believed defendant had experienced a "catathymic crisis," which he described as a breakdown of the emotions. Such a crisis could result from an emotional upset that "disturbs" the individual's thinking and behavior. He noted that defendant was unable to have an erection due to an injury he suffered in a car accident.

Defendant told Latimer that on the night Ana was killed, he was with Ana in his bedroom. He told Ana he wanted to return to his home country of Guatemala, but she said he could only leave when she let him. He claimed that Ana started to claw at him, and he felt humiliated that he could not get an erection. Defendant said Ana grabbed at the hair on his chest and laughed at him, and he felt embarrassed because he "used to be a man." He said he began to doze off, and the last thing he remembered was running out of the bedroom.

Latimer noted that defendant had placed the knife in Ana's hand, but described it as an act done during a period of "dissociation" during which defendant did not "know exactly what he was doing[.]" Defendant was "in a panic state" and walked out of the room. He opined that defendant had a brief period of insanity.

The State presented testimony of Dr. Howard Gilman ("Gilman"), a forensic psychiatrist. Gilman said defendant "kn[ew] what he was doing" when he committed the charged offenses. According to Gilman, defendant had a "full appreciation of his actions" and "full appreciation of the wrongfulness of murder and desecration."

The jury found defendant guilty of both offenses. The court sentenced defendant to life imprisonment for murder, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a ten-year consecutive sentence for the desecration of human remains.

Defendant appealed and raised the following issues for the court's consideration

POINT I

SINCE THERE WAS EVIDENCE THAT DEFENDANT DID NOT ACT KNOWINGLY OR PURPOSELY DURING THE OFFENSES, THE ABSENCE OF AN INSTRUCTION ON DIMINISHED CAPACITY REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL (Not raised below).

POINT II

SINCE THE COURT IMPROPERLY ADMITTED EVIDENCE THAT DEFENDANT'S STEP-CHILDREN SUDDENLY "DISLIKED" AND "HATED" HIM FOR SOME MYSTERIOUS REASON PRIOR TO THE HOMICIDE WITH NO CURATIVE INSTRUCTION, DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL. (Partially raised below).

POINT III

THE MAXIMUM LIFE-TERM OF IMPRISONMENT SUBJECT TO THE [NO EARLY RELEASE ACT] 85% PAROLE BAR FOR MURDER WAS EXCESSIVE.

We rejected these arguments and affirmed. State v. Rivera, Docket No. A-2163-06 (App. Div. March 19, 2010). The Supreme Court subsequently granted certification and affirmed our judgment, as modified. State v. Rivera, 205 N.J. 472, 492 (2011).

On February 17, 2011, defendant filed a pro se petition for PCR, claiming that he had been denied the effective assistance of counsel. He alleged that counsel was ineffective because counsel: (1) did not request an instruction on diminished capacity; (2) failed to object to evidence of other crimes and/or bad acts; (3) stipulated that defendant's stab wounds were self-inflicted and stated in closing that there had not been a fight between defendant and the victim; and (4) failed to call clinical psychologist Dr. Ernesto L. Perdomo ("Perdomo") as a witness. The court assigned counsel to represent defendant, and counsel filed a brief supplementing defendant's contentions on the fourth point.

The PCR court filed a written opinion and order dated November 15, 2012, in which it concluded that defendant had not presented a prima facie case of ineffective assistance of counsel. The court denied defendant's request for an evidentiary hearing and PCR. This appeal followed. Defendant argues

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF AS A RESULT OF TRIAL COUNSEL'S FAILURE TO CALL DR. ERNESTO L. PERDOMO AS A WITNESS.

We have carefully considered this argument in light of the record and the applicable legal principles. We conclude that defendant's argument is entirely without merit. We affirm the denial of PCR substantially for the reasons stated by Judge Robert J. Mega in his written opinion dated November 15, 2012. We add the following brief comments.

Defendant's claim that he was denied the effective assistance of counsel as required by the Sixth Amendment to the United States Constitution is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A defendant also must show that there exists 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. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims under our State constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant maintains that his trial attorney erred because he failed to present testimony from Perdomo at trial. He notes that Latimer had asked Perdomo to perform a psychological evaluation of defendant. The evaluation was performed and thereafter Perdomo issued a report dated February 16, 2006.

In that report, Perdomo stated that there were indications that defendant's emotional conflicts with his wife, as well as the underlying conflicts due to physical deformities and his impotence, led to "a catathymic crisis" that resulted in the sexual murder and mutilations of his wife. Perdomo wrote that it was not uncommon for a "catathymic violent episode" to be followed by or part of a "[dissociative] episode disorder[.]" This would explain defendant's "amnesia in relation to the events of his wife's murder."

Perdomo noted, however, that he had performed various psychological tests, including the Minnesota Multiphasic Personality Inventory, Second Edition ("MMPI-2") and the Milton Clinical Multiaxial Inventory, Third Edition ("MCMI-III"). Perdomo said that defendant's MMPI-2 profile was invalid, because he responded to the test "in an extremely exaggerated manner." He also said that the results of defendant's MCMI-III test were "also of limited validity" because he responded to the test "in an unreliable manner." Perdomo stated that defendant may have misunderstood some of the "items" due to "reading difficulty, an episode of disturbed feelings or thoughts, or general confusion at the time of the tests."

Latimer incorporated Perdomo's test results in his diagnosis. Defendant points out that Latimer was extensively cross-examined on his findings at trial. According to defendant, Latimer was unable to explain the results of the tests that Perdomo administered and relate them to his own diagnosis. Defendant contends that only Perdomo could have explained the tests and responded effectively to the prosecutor's assertions regarding the unreliability of the test results.

Here, the PCR court rejected defendant's claim regarding counsel's failure to call Perdomo as a witness. The court noted that defendant claimed Perdomo would have provided more favorable testimony than Latimer regarding the cause of the invalid results of the two tests. The court noted that defendant asserted that Perdomo would have successfully dispelled the suggestion that defendant intentionally misrepresented his symptoms while answering the tests. The court pointed out that defendant had not submitted a certification from Perdomo in support of this claim.

The court also found that the record refuted defendant's claim. The court noted that Perdomo had pointed to "the wide array of factors" that may have "flawed the test results[.]" The court said that Perdomo's report suggested that he had not, in fact, formulated an opinion as to whether defendant "intentionally misrepresented his symptoms or had done so as a result of unconscious processes." The court found that, in the absence of proof that Perdomo would have opined that the flawed test results were not the result of defendant's attempt to fabricate a mental illness, defendant's claim was "mere conjecture."

The court determined that, under the rules of evidence, Latimer was permitted to rely on Perdomo's report in support of his conclusion that defendant suffered from "a brief psychotic disorder on the night in question." The court said that, as an evidentiary matter, counsel's decision not to call Perdomo did not fall below reasonable professional standards. Moreover, this decision was rooted in "reasonable trial strategy." Thus, defendant failed to satisfy the first prong of the Strickland test.

The court further found that defendant was not prejudiced by Perdomo's absence. There was no indication that Perdomo would have dispelled the State's theory that defendant had attempted to feign a mental illness while undergoing the psychological tests. The court noted that despite Perdomo's absence, the jury learned of the test results.

The court said that although Latimer may not have explained the results to the extent defendant would have liked, there was "no evidence to suggest that a more thorough explanation of the results would have rendered a different result at trial." The court also stated it was highly unlikely the jury would have returned a different verdict if it had been provided with more information as to how the MCMI-III test had been performed. Thus, defendant failed to satisfy the second prong of the Strickland test.

We are convinced that the record fully supports the court's findings and its conclusion that defendant was not denied the effective assistance of counsel because his attorney did not call Perdomo as a witness at trial.

We are also convinced that the court correctly determined that an evidentiary hearing was not required on the petition. Defendant failed to present a prima facie case of ineffective assistance of counsel, there were no material issues of disputed fact that could not be resolved by reference to the trial court record, and an evidentiary hearing was not required to resolve defendant's claims. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354 (2013).

Affirmed.