STATE OF NEW JERSEY v. OBED TORRES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4423-05T44423-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OBED TORRES,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 28, 2007 - Decided April 30, 2007

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 98-06-1016.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, of counsel and

on the brief).

Edward J. DeFazio, Hudson County

Prosecutor, attorney for respondent

(Seth P. Galkin, Assistant Prosecutor,

on the brief).

PER CURIAM

Three members of a local branch of the Latino street gang "MS-13," defendant Obed Torres, co-defendant Alberto Arroyo, and co-defendant Ronando Aragon, were charged with the 1997 murder of Walter Alexander Gomez, who was also a member of the gang. Over defendant's objection, the State severed the charges and first tried defendant, who was the gang leader. After a Hudson County jury convicted Torres of first-degree murder, co-defendants pled guilty to aggravated manslaughter and attempted to exonerate defendant in their allocutions. The trial judge sentenced defendant to thirty years imprisonment with thirty years parole ineligibility.

After exhausting all direct appeals, State v. Torres, 183 N.J. 554, 559-601 (2005), defendant petitioned for post-conviction relief (PCR), raising essentially the following three arguments: (1) the trial court violated his constitutional rights by trying him first, thereby depriving him of his co-defendants' exculpatory testimony; (2) the prosecutor failed to disclose the exculpatory evidence provided by co-defendants in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and (3) trial counsel was ineffective because he represented defendant at both the trial and PCR application. Judge Kenny denied each of these arguments without granting an evidentiary hearing, and defendant appealed to this court. We affirm.

Before trial, defendant moved to have the trial of his co-defendants proceed first, so that they would be available as witnesses during his trial. The trial court denied this motion, according to defendant's counsel, because counsel could not indicate the expected testimony of the co-defendants or even guarantee that they would testify if they were not under jeopardy. Therefore, defendant's trial proceeded, and he was convicted of murder. After defendant was convicted, co-defendants each pled guilty to aggravated manslaughter and attempted to exonerate defendant.

The issue relating to this occurrence was not raised by defendant in a motion for new trial or on direct appeal of his conviction and sentence. After hearing this argument, raised for the first time on defendant's PCR petition, Judge Kenny did not find the allocutions "so clearly exculpatory [or] so clearly credible[] that it would [warrant] chang[ing] the order of the trial." She noted that the allocutions were tightly scripted "yes" and "no" answers that had no indicia of truthfulness.

It is obvious that defendant could have moved for a new trial before sentencing based on his co-defendants' allocutions. However, since defendant neither moved for a new trial on this basis nor raised the issue on direct appeal, the issue is barred for PCR under R. 3:22-4.

Furthermore, this claim does not even raise a constitutional issue. The trial court properly determined that the allocutions were neither exculpatory nor particularly trustworthy. The co-defendants acknowledged in their allocutions that defendant knew they would have a machete and knife with them that evening and knew of the ongoing dispute between defendant and co-defendants. Defendant was present when co-defendants killed Gomez, but according to co-defendants' allocutions, did not direct them not to kill Gomez. However, co-defendants also admitted that had defendant so instructed them, as the leader of the gang, they would have obeyed.

Although it could be argued that the statements differed from the State's theory that defendant as gang leader ordered co-defendants to kill Gomez, these statements were far from exculpatory. Defendant's failure to stop co-defendants from killing Gomez leads to an inference of culpability, especially considering his presence, what he knew at the time, and his status in the gang. Additionally, as noted by the trial court, the statements were sparse and carefully tailored. This does not lead one to conclude that they were either reliable or trustworthy.

Therefore, defendant's rights to compulsory process did not require reordering of the trials. See State v. Sanchez, 143 N.J. 273, 292 (1996) (holding that a determination of the exculpatory nature of the evidence turns on the "reliability and trustworthiness" of the testimony).

Next, defendant argues that the prosecutor failed to provide discovery of the co-defendants' exculpatory evidence and thereby violated the Brady doctrine. This issue, as the last, could have been raised in a motion for new trial and argued on direct appeal. It is therefore barred under R. 3:22-4.

Furthermore, defendant's conviction occurred on September 14, 2002. The allocutions were not provided until October 2, 2002, and thus did not become available to the State until after commencement of defendant's trial. Accordingly, even assuming the allocutions were exculpatory, we cannot conclude that the prosecutor suppressed material evidence favorable to the defense. See State v. Martini, Sr., 160 N.J. 248, 268-69 (1999) (enumerating the elements necessary to establish a Brady violation). Moreover, even if the content of the allocutions were available to the State, the statements were neither exculpatory nor reliable, leaving Brady inapplicable.

Finally, defendant contends that he was ineffectively served by counsel because he was assisted by the same counsel at trial and the PCR application. According to defendant, counsel could not under such circumstances "objectively raise the issue of his own ineffectiveness at trial," and this conflict requires that we reverse Judge Kenny's denial of PCR or at least return the matter for a hearing on PCR.

A showing of ineffective assistance of counsel requires a defendant to first demonstrate that counsel's performance was deficient, and second, that it was reasonably probable that these deficiencies materially contributed to defendant's conviction. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52, 58 (1987). The presence of an actual conflict of interest creates the presumption that counsel provided substandard performance. State v. Fusco, 93 N.J. 578, 587 (1983). Where there is only a potential conflict of interest, however, the court must "examine[] the conflict of interest and evaluate[] the likelihood of prejudice." State v. Murray, 162 N.J. 240, 250 (2000).

Although a potential conflict is present when defendant's trial counsel also represents him during a PCR application, there was no prejudice to defendant in this instance. Here, defendant had separate counsel for his direct appeal. Ineffective counsel arguments can be advanced on direct appeal, even though their resolution may often be deferred until PCR. See State v. Preciose, 129 N.J. 451, 460 (1992).

In this case, no facts were alleged on direct appeal, or advanced on this appeal, demonstrating deficient performance by trial/PCR counsel. Furthermore, the applicable law requires that PCR counsel include in a PCR brief any pro se raised arguments, including, of course, ineffective counsel contentions. See State v. Webster, 187 N.J. 254, 257 (2006); State v. Rue, 175 N.J. 1, 18-19 (2002). Thus, defendant himself could have presented ineffective counsel arguments that would have had to be included in the PCR petition, and the inclusion of such an argument might have alerted counsel to a possible conflict. In the absence of any specific ineffective counsel arguments, defendant has not established a prima facie case of ineffective assistance, and we reject the assertion that PCR must be granted simply because defendant was represented by the same person at trial and during the PCR proceedings.

In conclusion, we agree with Judge Kenny that defendant has advanced no argument that warrants PCR, and further conclude that the judge correctly denied PCR without according defendant a hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

 

Neither the transcript nor motion papers were included in the record.

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A-4423-05T4

April 30, 2007