STATE OF NEW JERSEY v. GRACIANO MARTINEZ-ROSALES

NOT FOR PUBLICATION WITHOUT THE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.

GRACIANO MARTINEZ-ROSALES,

Defendant-Appellant.

__________________________________________

February 21, 2014

Submitted November 6, 2013 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1716.

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

Andrew C. Carey, Acting Middlesex Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Graciano Martinez-Rosales, appeals from the December 14, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

The record reveals that on December 14, 2004, a Middlesex County grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3(a)(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4).

The indictment arose out of the stabbing death of Carolyn Arrington, whose body was discovered in the basement of an apartment building in Perth Amboy. An investigation eventually led to defendant, who consented to an interview. After receiving Miranda1 warnings several times, defendant admitted to having sex with the victim in the basement in exchange for money on the night she was killed, but denied killing her. Later, after being given a fourth set of Miranda warnings, defendant gave his second statement, admitting that during an argument with the victim, the victim slapped him, and he lost control and stabbed her.

While defendant was awaiting trial in the county jail, he became acquainted with another inmate, Bernard Dickens. According to Dickens' testimony at trial, defendant admitted to stabbing the victim and told him where he disposed of the weapon. Pedro Ventura, defendant's friend who lived in the building, also testified that he witnessed defendant stab the victim. Defendant testified, denied killing the victim, and stated that he told the police he had done so because only he felt threatened by them.

On May 8, 2006, a jury found defendant guilty of first-degree aggravated manslaughter, a lessor-included offense, and hindering apprehension, but acquitted him of murder and the weapons possession charge. On July 27, 2006, the court sentenced defendant to twenty-years imprisonment with an eighty-five percent period of parole ineligibility on the manslaughter conviction, and four-years imprisonment on the hindering apprehension conviction to run concurrently.

On September 27, 2007, defendant appealed his conviction and sentence. State v. Rosales, No. A-0232-06 (App. Div. June 19, 2009). Defendant argued that the trial court erred by precluding the defense from eliciting expert testimony relating to the issue of false confessions, by permitting Ventura to testify about an alleged threat made in a letter attributed to defendant, by failing to declare a mistrial after receiving a note from the jury that they were deadlocked, and that his sentence was manifestly excessive. Id. (slip op. at 27-28). We affirmed his conviction and sentence. Id. (slip op. at 43).

The Supreme Court granted certification on the sole issue of whether defendant should have been permitted to call an expert psychologist to testify that his confession was not voluntary. State v. Rosales, 200 N.J. 475 (2009). Ultimately, the Court affirmed the exclusion reasoning that the proposed testimony would not have aided the jury in coming to a decision. State v. Rosales, 202 N.J. 549, 564 (2010).

On August 17, 2010, defendant filed a pro se petition for PCR claiming that trial counsel was deficient by (1) failing to provide consultation or meaningful communication with defendant; (2) failing to investigate or summon potential witnesses to establish a defense; (3) failing to request any forensic analysis of physical evidence found at the crime scene; (4) failing to advise defendant of the ramifications of testifying before a jury, and his right to refuse without consequences; (5) failing to advise defendant not to discuss the facts of the case with anyone at the jail; (6) failing to effectively cross-examine investigators regarding their coercive interrogation; (7) failing to advise defendant that an expert psychologist who evaluated him was a State witness, and of his right to refuse evaluation; and (8) failing to effectively cross-examine Ventura. Defendant also claimed that appellate counsel was deficient by (1) failing to provide consultation or meaningful communication with defendant; (2) failing to prepare an adequate brief; and (3) failing to cite plain errors.

On July 13, 2011, defendant's counsel filed a supplemental brief arguing:

POINT I: TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO INVESTIGATE AND PRESENT ALIBI WITNESSES; THE SUBSTANTIAL DENIAL OF CONSTITUTIONAL RIGHTS, INCLUDING EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW, REQUIRES A NEW TRIAL.

POINT II: PETITIONER HAS DEMONSTRATED HIS RIGHT TO A NEW TRIAL BY A PREPONDERANCE OF THE EVIDENCE; AT A MINIMUM, HE HAS MADE A CASE FOR AN EVIDENTIARY HEARING TO RESOLVE THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: COMPLIANCE WITH STATE V. WEBSTER.

On November 4, 2011, Judge Michael A. Toto heard oral argument on the PCR petition. He rendered a comprehensive written opinion on December 14, 2011, denying defendant's PCR petition without an evidentiary hearing. The judge determined that defendant failed to establish a prima facie claim of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge further determined that defendant did not demonstrate a reasonable likelihood of success that would warrant an evidentiary hearing under State v. Preciose, 129 N.J. 451, 462-64 (1992).

Specifically, the judge determined that an evidentiary hearing was not warranted as defendant conceded that his alibi witnesses could not be located, and defendant did not furnish any certifications from them to support his assertions. Furthermore, the judge found the trial judge advised defendant of the consequences of testifying before a jury and his right to remain silent prior to his testimony.

Responding to defendant's remaining arguments, the judge found that the State did provide discovery to trial counsel, which included DNA testing. He further noted that the State had a right to have defendant examined by its expert psychologist in order to rebut defendant's expert, that the trial transcripts demonstrated that defense counsel adequately cross-examined the State's witnesses, and the remainder of his arguments were without sufficient merit to warrant a discussion. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT I: TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO INVESTIGATE AND PRESENT ALIBI WITNESSES; THE SUBSTANTIAL DENIAL OF CONSTITUTIONAL RIGHTS, INCLUDING EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW REQUIRES A NEW TRIAL.

POINT II: TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO MEET AND DISCUSS WITH THE DEFENDANT THE PITFALLS OF CHOOSING TO WAIVE THE RIGHT TO REMAIN SILENT AND THAT HE SHOULD NOT DISCUSS HIS CASE WITH ANYONE INCLUDING OTHER INMATES IN JAIL.

We begin with a review of the well-settled legal principles that guide our analysis. Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

In considering the first prong, we give great deference to counsel's professional performance, and evaluate the decisions made, not with hindsight, but in light of counsel's state of mind at the time. State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002). "Counsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.'" Id. at 22 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. Furthermore, "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. (citing R. 1:6-6).

A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. (citing Preciose, supra, 129 N.J. at 462-64); see also State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Having considered defendant's contentions in light of the record and the applicable legal principles, we find them to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Toto's thorough and cogent written opinion of December 14, 2011. We add only the following comments.

On appeal, defendant again asserts that trial counsel failed to investigate and present alibi witnesses. As Judge Toto correctly determined, defendant was not entitled to an evidentiary hearing as he did not provide certifications from the witnesses supporting his vague declarations of their purported exculpatory testimony. See Cummings, 321 N.J. Super. at 170.

As to defendant's contention that he was not informed of the consequences of testifying at trial, the record clearly demonstrates that the trial court fully informed defendant of the dangers of testifying. Furthermore, defendant stated on the record that he had an opportunity to speak to his attorney regarding his decision to testify, that he understood that he was giving up his right to remain silent, and he understood the potential scope of cross-examination.

In sum, from our review of the entire record, and for the reasons stated above, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his trial counsel's performance was deficient or that it resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

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