STATE OF NEW JERSEY v. LORENZO BARRENECHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5216-07T45216-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LORENZO BARRENECHEA,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 11, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-542.

James S. Friedman, LLC, attorney for appellant (Mr. Friedman, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lorenzo Barrenechea appeals from a January 22, 2008 order that denied his first petition for post-conviction relief (PCR). On appeal, he maintains that the judge ignored much of the salient testimony elicited at the evidentiary hearing on defendant's petition and erroneously concluded that trial counsel's handling of defendant's suppression motion satisfied applicable Sixth Amendment standards for effective assistance of counsel. We affirm.

I.

On January 2, 2002, several Elizabeth police officers went to 158 Park Place to arrest defendant on a parole violation warrant. The officers knocked, and defendant's girlfriend, Adrienne Alvarez, opened the door. The officers displayed a photograph of defendant and asked her if she knew where he was. According to the testimony of Detective James Mooney at the suppression hearing, Alvarez pointed over her shoulder into the house. The officers found defendant asleep in a second floor bedroom. After searching defendant's pants, officers found approximately $1,000 in the pocket. They also observed a large bag of cocaine in plain view.

Mooney testified that before departing, the officers asked Alvarez to consent to a search of the bedroom. He acknowledged telling her they "wouldn't feel safe in letting her children back in the room without checking for drugs and weapons." Mooney read and explained the consent form to Alvarez, and advised her that she was not required to sign the form and had a right to refuse consent. After Alvarez gave written consent, Mooney and the other officers found a loaded semiautomatic weapon in a closet in the bedroom. The motion judge, who was not the same judge who presided at the PCR proceeding, denied defendant's motion to suppress, finding that the uncontroverted testimony established that Alvarez had voluntarily provided consent to search her apartment. The judge specifically concluded that the officers did not threaten Alvarez with removal of her children or with a DYFS complaint before she consented to the search. Defense counsel did not call Alvarez or any other witnesses at the suppression hearing.

Defendant was convicted at trial of second-degree possession of cocaine with intent to distribute and second-degree possession of a firearm while committing a drug distribution offense. Alvarez testified at the trial. The record does not contain the transcript of any of the trial testimony. We do know, however, that Alvarez willingly appeared at the courthouse on the first day that defense counsel requested, but she was not called to the stand that day. When Alvarez had not appeared the next day by 11:30 a.m., the trial judge sent a sheriff's officer to apprehend her and bring her to court. We affirmed defendant's conviction on direct appeal, but remanded for resentencing. State v. Barrenechea, No. A-6259-03 (App. Div. March 20, 2006). The Court denied defendant's petition for certification. State v. Barrenechea, 187 N.J. 82 (2006).

In October 2006, defendant filed the PCR petition that is the subject of this appeal. He supported his petition with an affidavit from Alvarez in which she stated that she consented to the search only because police threatened to arrest her and remove her children if she did not sign the consent to search form. Her testimony at the PCR hearing was consistent with her affidavit. Alvarez also testified at the PCR hearing that she had called defendant's trial attorney more than twenty times at defendant's request prior to the suppression hearing but, according to Alvarez, he never returned her calls. She contended she was willing to testify on defendant's behalf and would have done so had trial counsel asked. At the time of the PCR hearing, Alvarez was living in Florida and had apparently returned to New Jersey to testify, although she was living in Elizabeth at the time of the suppression motion and defendant's trial.

The State called defendant's trial counsel, who testified that he made the decision not to present Alvarez as a witness at the suppression hearing because, after meeting with her and speaking to her several times, he did not find her to be a credible witness. Trial counsel testified that Alvarez "seemed very reluctant to even get involved in the case." He did, however, acknowledge that Alvarez told him in his office and over the telephone "that she thought that the police were putting her [under] pressure because of [her] kids." Nonetheless, trial counsel explained "he [didn't] think she was credible because she had contradicted herself even in [his] office."

Having decided that Alvarez would not be helpful, trial counsel chose instead to establish that Alvarez's consent was coerced solely through cross-examination of Detective Mooney. According to trial counsel, defendant agreed with that strategy. At the PCR hearing, defendant testified to the contrary, maintaining that he told his trial attorney he wanted Alvarez to testify at the motion to suppress.

At the conclusion of the PCR hearing, Judge Triarsi denied defendant's PCR petition. He specifically found trial counsel's testimony to be credible, concluding that counsel interviewed Alvarez prior to the motion to suppress. The judge also specifically found that trial counsel explained to defendant that Alvarez would not be helpful if called as a witness at the suppression hearing.

In contrast, the judge rejected the testimony that Alvarez offered at the PCR hearing, finding that she lacked credibility. The judge placed considerable weight on Alvarez's failure to appear to testify at trial on the second day, which resulted in the judge ordering the Sheriff's Department "to find her. To bring her in. To force her to testify." Because of Alvarez's distinct lack of cooperation at the trial, the judge found that her later claim at the PCR hearing -- that she would gladly have testified at the suppression hearing if asked to do so -- "rings hollow." The judge also rejected Alvarez's testimony that she telephoned trial counsel twenty times and he never responded. The judge commented, "I do not believe her. I've seen her. I've looked at [her] eyes. I don't believe her. . . . That's my findings."

Likewise, the judge found defendant's testimony at the PCR hearing lacking, commenting that he did not believe defendant's claim that he instructed his attorney to call Alvarez as a witness at the suppression hearing. Instead, the judge found that defendant agreed that Alvarez should not be called, but, after the suppression motion was denied, defendant realized he could not avoid calling Alvarez as a witness at trial.

On appeal, defendant asserts that Alvarez would have been a willing and credible witness at the suppression hearing had his attorney called her as a witness. He contends that the PCR judge's rejection of Alvarez's testimony resulted from the judge's focus on a "small number of isolated facts taken out of the context of a much larger record." Defendant also asserts that trial counsel's testimony at the PCR hearing was vague, inconsistent, and not worthy of belief.

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is 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 a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

As the Court observed, when evaluating trial counsel's performance, "'[j]udicial 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 strategy decision should not be characterized as ineffective assistance merely because such decision did not produce the desired result. Id. at 37-38. Moreover, we presume that a trial attorney's strategy decisions fell within the broad spectrum of competent legal representation, and the burden is placed on defendant to prove otherwise by a preponderance of the evidence. Fritz, supra, 105 N.J. at 52.

When the trial judge has made specific factual findings, those findings are entitled to substantial deference on appeal. State v. Locurto, 157 N.J. 463, 474 (1999). We do not review the record from the point of view of how we would decide the matter were we the original factfinder. State v. Johnson, 42 N.J. 146, 162 (1964). Rather, we are obliged to "give deference to those findings of the trial judge which are substantially influenced by [the judge's] opportunity to hear and see the witness and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 161. Thus, our scope of review of a trial judge's findings of fact is extremely narrow. Id. at 162. So long as the judge's findings of fact "could reasonably have been reached on sufficient credible evidence present in the record," they are binding on appeal. Ibid.

Viewed in this light, defendant's attack on the judge's findings of fact is meritless. Contrary to defendant's claims on appeal, the judge did not selectively focus on some facts while ignoring others. The record demonstrates that the judge conducted a thorough and comprehensive review of the evidentiary record before him. In particular, the judge's oral opinion was not limited to Alvarez's failure to appear in court to testify at defendant's trial until apprehended by sheriff's officers, but also addressed her willingness to execute a PCR affidavit on defendant's behalf and testify at his PCR hearing. Thus, the judge did not ignore Alvarez's cooperative attitude at the PCR stage. Instead, the judge discussed that testimony, but expressly rejected her claim that she would have appeared at the suppression hearing if requested to do so by defense counsel. The judge stated that he did not believe Alvarez's claim that she contacted trial counsel twenty times and received no response. Thus, defendant's contention that the judge ignored the testimony that supported his position is meritless. The judge addressed that testimony by finding neither Alvarez nor defendant credible.

Unlike the trial judge, who had the benefit of hearing, seeing and observing the testimony of trial counsel, Alvarez and defendant, we have nothing other than the cold record to guide us. It is for that reason that the Court has held that appellate judges must defer to a trial judge's findings of fact, especially where those findings include detailed credibility determinations. Locurto, supra, 157 N.J. at 470-71, 474.

We have been presented with no meritorious basis upon which to reject the PCR judge's conclusion that trial counsel met with Alvarez and concluded she would make a poor witness. Under those circumstances, we will not second-guess the strategy decision trial counsel made when he decided to rely exclusively on cross-examination of Mooney, rather than also call Alvarez, to establish that her consent was coerced. Merely because such strategy was not successful does not render counsel's performance defective. State v. Buonadonna, 122 N.J. 22, 42 (1991).

 
Affirmed.

Although the record does not contain a transcript of the hearing on defendant's motion to suppress, the parties agree on the nature of the testimony that was presented.

Alvarez's parents owned the two-story house; Alvarez lived upstairs. Defendant stayed overnight at her apartment three to four times per week.

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A-5216-07T4

August 20, 2009