STATE OF NEW JERSEY v. AGUSTIN GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5437-06T45437-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AGUSTIN GARCIA,

Defendant-Appellant.

_________________________________

 

Submitted: October 21, 2009 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1368.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Charles Cho, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Augustin Garcia appeals from the May 4, 2007 order denying his petition for post-conviction relief (PCR), in which he alleges ineffective assistance of trial, appellate and PCR counsel, as well as prosecutorial misconduct and jury prejudice. We affirm.

Following a lengthy jury trial, defendant was convicted of purposely and knowingly causing his ex-girlfriend's death, two weapons offenses, and two counts of endangering the welfare of a child. The convictions arose out of an incident in which defendant appeared at his former girlfriend's wedding as an uninvited guest and shot and killed her at close range in the presence of witnesses, including children. The shooting was captured by the wedding videographer on high resolution video tape, which was copied exactly by Ridgefield Police Lieutenant David Cassirer to a VHS tape for viewing in court. Contrary to what the tape revealed, defendant testified that after he entered the bride's house where the wedding was being held, her brother and others attacked him, he reached for his gun to protect himself, and at some point during the struggle he blacked out and learned that the bride had been killed. Defendant also claimed that upon learning of the bride's death, he stated he wanted to kill himself. After the final shot, defendant was restrained when he attempted to reload the gun.

The trial judge sentenced defendant to life in prison, with thirty years of parole ineligibility, for murder; a consecutive four-year term for third-degree unlawful possession of a weapon; and two concurrent four-year terms for endangering the welfare of a child. We affirmed defendant's convictions and sentences for murder and the weapons offenses, but reversed the convictions on the two counts of endangering the welfare of a child. State v. Garcia, No. A-3939-01T2 (App. Div. May 11, 2004). The Supreme Court denied defendant's petition for certification on September 10, 2004. State v. Garcia, 181 N.J. 545 (2004).

This PCR petition ensued and was denied by Judge William Meehan on May 4, 2007, following oral argument with defendant present, but without an evidentiary hearing. Defendant sought relief from the judgment on approximately fifty grounds asserted in pro se submissions and those of PCR counsel, claiming ineffective assistance of trial and appellate counsel. Some of the litany of defendant's claims of ineffectiveness of trial counsel included failing to: properly advise defendant regarding the pre-sentence report process, subpoena and investigate certain witnesses, provide him with the right to a fair trial via a series of omissions and derelictions, conduct a reasonable pre-trial investigation into evidence seized and file a motion to suppress the wedding tape based on tampering, secure his right to be present at critical stages of the proceeding, and advocate mitigating factors and downplay the aggravating factors. Defendant claimed appellate counsel failed to raise and argue pertinent legal and factual issues. Defendant further contended he was deprived of a fair trial as a result of prejudicial errors committed by the trial court, prosecutorial misconduct and alleged tampering with the tape, and jury prejudice as a result of the media, to name a few.

Defendant's claims were rejected by the PCR court. The court noted that defendant had the benefit of three experienced trial attorneys who "spent a great amount of time [with him] deciding which arguments to put forward and the theory of the case." The court found that defendant only made blanket claims of ineffective assistance of counsel, failed to identify what evidence the additional investigation would have supplied, and failed to establish how his various trial counsel were deficient. The court also determined that defendant's ineffective appellate counsel claim - that he failed to raise winning issues on appeal - was similarly without basis.

As to the claim of prosecutorial misconduct, the court held there was no indication the video had been tampered with and no evidence at all the video had been manipulated in any way other than the way it was done in open court with defendant and his three attorneys present, which included freezing frames and excluding the portions that did not pertain to the shooting.

As to the claim of jury impartiality, the court pointed out that media coverage was first started by defendant's trial counsel in press conferences on the courthouse steps, which the court stopped. The court concluded the media matter was not "a great live issue" during the trial, and voir dire had established which jurors could remain impartial. The court further responded to defendant's claims that it was biased or prejudiced against defendant and denied defendant's motion to disqualify itself and the prosecutor from the case. This appeal ensued.

On appeal, defendant asserts the following arguments through counsel:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL ESSENTIAL WITNESSES TO TRIAL.

B. TRIAL COUNSEL FAILED TO OBJECT OR MOVE FOR A MISTRIAL BASED ON THE PROSECUTOR'S USE OF PERJURED TESTIMONY.

C. TRIAL COUNSEL FAILED TO OBJECT TO THE JURY CHARGE.

D. TRIAL COUNSEL FAILED TO MOVE FOR THE DISMISSAL OF JURORS AND FAILED TO INSIST UPON ADDITIONAL VOIR DIRE.

E. TRIAL COUNSEL FAILED TO OBJECT TO THE EXCLUSION OF DEFENDANT AND THE PUBLIC FROM CRITICAL STAGES OF THE TRIAL.

F. TRIAL COUNSEL'S STRATEGY WAS DEFICIENT AND AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

G. TRIAL COUNSEL FAILED TO OBJECT TO EVIDENCE WHICH WAS INADMISSIBLE AS HEARSAY AND AS OTHER CRIME EVIDENCE.

G1. THE EVIDENCE WAS INADMISSIBLE HEARSAY.

G2. THE EVIDENCE WAS INADMISSIBLE OTHER CRIMES EVIDENCE.

POINT II

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT V

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE PROSECUTOR TAMPERED WITH AND WITHHELD EVIDENCE.

POINT VI

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Defendant asserts the following arguments in a pro se brief:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSELS CONSTITUTIONALLY GUARANTEED TO HIM BY THE UNITED STATES CONSTITUTION, AMENDMENTS VI & XIV; AND THE NEW JERSEY CONSTITUTION, ARTICLE I, PARPAGRAPH 10.

A. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSELS FOR THEIR FAILURE TO PROPERLY CONDUCT A PRETRIAL INVESTIGATION AND THE LOWER COURT'S ORDER DENYING THE DEFENDANT POST- CONVICTION RELIEF MUST BE REVERSED.

1. TRIAL COUNSELS WERE INEFFECTIVE FOR NOT CONSULTING OR HIRING AN EXPERT TO EXAMINE THE WEDDING VIDEOTAPE FOR EVIDENCE OF AN ALTERCATION CAPTURED ON THE AUDIO OF THE VIDEOTAPE AND FOR FAILING TO HAVE EXPERT TESTIFY AT TRIAL.

2. TRIAL COUNSELS WERE INEFFECTIVE FOR FAILING TO INTERVIEW WITNESSES AND SECURE THEIR ATTENDANCE AT TRIAL.

B. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL (Not Raised Below).

1. PCR COUNSEL, MICHAEL PAUL, WAS INEFFECTIVE FOR FAILING TO PROPERLY REVIEW DEFENDANT'S FILE, FAILING TO AMEND DEFENDANT'S PETITION, AND FAILING TO PROPERLY RAISE DEFENDANT'S ISSUES.

2. MICHAEL PAUL WAS INEFFECTIVE FOR FAILING TO MOTION COURT FOR A CHANGE OF VENUE.

3. MICHAEL PAUL WAS INEFFECTIVE FOR FAILING TO ADVOCATE FOR DEFENDANT.

POINT II

THE PCR COURT IDENITIFED THE WRONG UNITED STATES SUPREME COURT PRECEDENT AND APPLIED AN INCORRECT LEGAL STANDARD TO DENY DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM (Not Raised Below).

POINT III

THE PCR COURT ERRED IN RULING THAT THE DEFENDANT HAD FAILED TO PROVIDE A FACTUAL BASIS FOR INEFFECTIVE ASSISTANCE OF COUNSEL WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING - THEREFORE THE PCR COURT ORDER DENYING DEFENDANT RELIEF SHOULD BE REVERSED (Not Raised Below).

POINT IV

THE CUMULATIVE ERRORS COMMITTED BY TRIAL COUNSELS AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND THE DENIAL OF A FAIR TRIAL THAT RESULTED IN MANIFEST INJUSTICE.

We consider defendant's claims in light of well-settled principles. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed 2d, 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial or appellate counsel within the Strickland/Fritz test. Thus, an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We echo the comments made by Judge Meehan that the bulk of defendant's contentions on PCR were re-arguments of the facts of the case, focusing on inconsequential evidence that did not affect the outcome, and involved blanket claims of ineffective assistance without identification of the deficiencies or the resulting prejudice.

We will address a few of defendant's arguments. Defendant claims his trial counsel failed to call several witnesses who could have introduced exculpatory evidence and refute the State's witnesses. Defendant offered a list of witnesses counsel could have called to refute the State's theory that the victim wanted nothing to do with him, provide a counter to State's witnesses attacking defendant's character, and challenge the State's theory that defendant had no prior knowledge of the wedding's existence. Defendant also suggested his trial counsel should have called one witness who had previously given a statement regarding the existence of a struggle before the shooting.

Despite defendant's list of witnesses, many of whom defendant admits were investigated by his counsel though not subsequently called to testify, defendant fails to meet either prong of the Strickland/Fritz standard. It is insufficient to allege generically that the failure of trial counsel to call these people as a witness at trial constituted ineffective assistance without a showing that had they been presented at trial, they would have offered information of material exculpatory worth. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Particularly since many of these witnesses were considered and rejected by defense counsel, we can presume that defendant's experienced criminal defense trial team's decision not to call any of these people as a witness at trial was strategic. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695 (recognizing that in our analysis of attorney performance, we must indulge a strong presumption that counsel made all significant decisions in the exercise of his or her reasonable professional judgment and sound trial strategy).

We are also satisfied that neither the record nor the case law supports defendant's claim that his attorneys' decisions to exclude him from the courtroom during the public viewing of the tape, certain sidebar conferences with the court during jury selection, and during the playback of his own recorded statements on the tape to the jurors during deliberations, amounted to ineffective assistance of counsel. As the record demonstrates, due to its highly emotional nature, the court made the discretionary decision to present the wedding video twice, including the press and public during one viewing without defendant present by consent of his counsel, and a second time in which defendant was present for the portion shown to the jury. As such, defendant's counsel would have no basis to object to the court's reasonable exercise of discretion as defendant's rights were not being violated. See N.J.R.E. 611 (trial courts have broad discretion to control the scope and mode of the presentation of evidence and over-control of the courtroom); see also State v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.), certif. denied, 181 N.J. 546 (2004). Moreover, while a defendant and the public have a constitutionally-guaranteed right to access criminal trials, this right is not absolute, and a trial judge may make reasonable limitations "in order to prevent situations which might impede the progress or fairness of the trial, as long as basic rights involved are not unduly infringed." State v. Cuccio, 350 N.J. Super. 248, 266 (App. Div.), certif. denied, 174 N.J. 43 (2002).

As this trial took place prior to State v. W.A., 184 N.J. 45 (2005), trial attorneys' failure to object to defendant's exclusion at sidebar was not so unreasonable as to label their performance deficient. Defendant still had the opportunity to participate using the lawyer-shuttle system and was thus not denied his constitutional right to participate voir dire. See State v. Colbert, 190 N.J. 14 (2007). Moreover, even if counsel did not communicate with defendant regarding every potential juror, defendant fails to demonstrate a reasonable probability that the error contributed to the verdict so as to warrant reversal of his conviction. See State v. W.A., supra, 184 N.J. at 64; State v. Macon, 57 N.J. 325, 338 (1971).

Defendant's argument regarding trial attorneys' failure to object to defendant's exclusion during the jury's review of the wedding tape during deliberation is completely without merit. The court rules allow the jury to review exhibits admitted into evidence in the jury room. R. 1:8-8. The wedding video was admitted into evidence, allowing the jury to review it outside of defendant's presence. Defense counsel thus had no cause to object.

As with trial counsel, the effectiveness of appellate counsel is evaluated under the Strickland/Fritz standard. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987). Although appellate counsel must be an active advocate in providing assistance on direct appeal, he or she is not required to advance every argument, regardless of merit, urged by the appellant. Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 835, 83 L. Ed. 2d 821, 828 (1985). Furthermore, counsel's raising unsuccessful legal claims does not constitute ineffective assistance of counsel. State v. Worlock, 117 N.J. 596, 625 (1990). We are not persuaded by any of defendant's arguments regarding ineffective assistance of appellate counsel.

We further conclude that defendant failed to demonstrate that PCR counsel's performance was deficient under the Strickland/Fritz standard. In State v. Rue, 175 N.J. 1, 18 (2002), the Supreme Court noted that PCR counsel is required to communicate with his or her client and investigate the claims and then "'fashion the most effective arguments possible.'" (quoting State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2002)). Where communication and investigation produce little or nothing,

counsel must advance the claims the client desires to put forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may chose to stand on it at the hearing, and is not required to further engage in expository argument.

[State v. Rue, supra, 175 at 19.]

Defendant's PCR counsel submitted a seventy-six page brief on behalf of defendant, laying out eight arguments supporting defendant's ineffective assistance claims, most of which are renewed on appeal. Defense counsel's PCR brief provided a detailed recitation of the law and quoted the trial record repeatedly during his analysis. PCR counsel also submitted a supplemental brief. While the court ultimately denied defendant's petition for PCR relief, it is clear from the record that defense counsel made "the best available arguments in support of" defendant's petition. Ibid.

We perceive of no reason to address each and every claim raised by defendant of ineffective assistance of trial, appellate and PCR counsel, and other challenges to his judgment as they are either wholly without merit to warrant further discussion, R. 2:11-3(e)(2); could have been raised on direct appeal, R. 3:22-4; or have previously been adjudicated on direct appeal, R. 3:22-5.

Affirmed.

 

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A-5437-06T4

November 6, 2009