STATE OF NEW JERSEY v. RENATO SANTOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5173-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENATO SANTOS,

Defendant-Appellant.

_________________________________

November 9, 2010

 

Submitted October 25, 2010 - Decided

 

Before Judges Reisner and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Renato Santos appeals from a January 28, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I

In connection with the shooting death of Rashon "Jamal" Roy, defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3; second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced to thirty years imprisonment, to be served without parole, plus a concurrent ten-year term for the weapons conviction. On defendant's direct appeal, we affirmed his conviction but remanded to require merger of the weapons conviction into the murder conviction and vacation of the associated ten-year concurrent sentence. State v. Santos, No. A-0065-04 (App. Div. Dec. 22, 2006), certif. denied, 190 N.J. 396 (2007).

In order to place the appellate issues in context, our opinion on direct appeal addressed the trial evidence in great detail. That discussion need not be repeated here. To summarize, the State presented evidence that defendant, Gregory Maples, and Roy were associated in a business, the nature of which was not disclosed to the jury. On April 25, 2002, while on a trip to Yonkers, New York with Roy, Marvin L. Worthy, defendant, and several other men, Maples accused Roy of trying to have him killed. According to eyewitness testimony, defendant and Worthy pointed guns at Roy and Roy's brother, Halim Shabazz, but did not shoot them.

However, Maples continued to suspect Roy of treachery, and at his direction on April 28, 2002, Santos and Worthy shot Roy outside an apartment complex in Lakewood, New Jersey. After the police apprehended defendant, he gave two separate confessions in which he admitted shooting Roy. A co-defendant named Ernesto Barber, who was present at the shooting, entered into a plea agreement1 and gave trial testimony implicating defendant, Worthy and Maples in the shooting. Defendant's fingerprints were found in the vehicle in which the shooting occurred.

On his direct appeal, defendant filed a brief through counsel and filed a separate pro se brief. His counsel's brief raised the following issues:

POINT I: THE TRIAL COURT ERRED IN DENYING SUPPRESSION OF THE DEFENDANT'S INCULPATORY STATEMENTS, BECAUSE THEY WERE THE UNATTENUATED PRODUCT OF AN ILLEGAL ARREST, AND INVOLUNTARY UNDER THE TOTALITY OF THE CIRCUMSTANCES.

 

A. The Trial Court Erred In Its Determination Of Credibility

 

B. The Defendant Was Arrested Without Probable Cause, And His Inculpatory Statement Was The Unattenuated Result Of The Illegal Arrest. U.S. Const., Amends. IV, XIV; N.J. Cont. (1947), Art. 1, Par 7.

 

C. The Purported Confession Was Also The Result Of An Overbearing Of The Defendant's Will, And Accordingly Must Be Suppressed.

 

POINT II: THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO DELIVER A "FALSE IN ONE, FALSE IN ALL" CHARGE.

 

POINT III: THE STATE COMMITTED MISCONDUCT DURING ITS SUMMATION, NECESSITATING REVERSAL. (Not Raised Below).

 

POINT IV: THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY CHARGING LESSER-INCLUDED OFFENSES OVER HIS OBJECTIONS[S].

 

POINT V: THE DEFENDANT WAS SEVERELY PREJUDICED BY THE FAILURE OF THE TRIAL COURT TO DELIVER A JURY CHARGE CONCERNING THE FAILURE OF THE AUTHORITIES TO RECORD HIS INTERROGATION. (Not Raised Below).

 

POINT VI: THE TRIAL COURT ERRED IN FAILING TO MERGE THE WEAPON OFFENSE WITH THE MURDER CONVICTION, AND IN IMPOSING AN ILLEGAL SENTENCE AS TO THE WEAPON OFFENSE. (Not Raised Below).

 

A. The Weapon Conviction Must Be Merged.

 

B. The Trial Court Imposed An Illegal Sentence For The Weapon Offense.

Defendant's pro se brief raised the following additional issues:

POINT I: THE ADMISSION OF ORAL STATEMENTS ALLEGEDLY MADE BY THE DEFENDANT WAS OBTAINED IN VIOLATION OF DEFENDANT'S (FIFTH AND SIXTH] AMENDMENT CONSTITUTIONAL RIGHTS AFTER DEFENDANT INVOKED HIS RIGHT TO SILENCE AND TO COUNSEL WHICH WAS NOT SCRUPULOUSLY HONORED WAS SO PREJUDICIAL AS TO DEPRIVE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED.

 

POINT II: THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY THAT THE GUILTY PLEA OF CO-DEFENDANT ERNESTO BARBER COULD NOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT WAS EXTREMELY PREJUDICIAL WHERE THE CO-DEFENDANTS WERE THE CRUX OF THE [STATE'S] CASE THEREFORE DEFENDANT'S CONVICTION SHOULD BE REVERSED.

 

POINT III: THE INTRODUCTION OF OTHER-CRIMES-EVIDENCE THAT DEFENDANT AND CO-DEFENDANT MARVIN WORTHY HAD SHOT AND KILLED OTHER PEOPLE WITHOUT ANY LIMITING INSTRUCTION WAS SO PREJUDICIAL AS TO DEPRIVE THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED.

In our 2006 opinion, we considered all of defendant's arguments, and with the exception of the sentencing issue mentioned earlier, we rejected defendant's appellate arguments as without merit.

Defendant then filed a petition for post-conviction relief, raising many of the same arguments he presented on direct appeal, albeit characterizing them as claims of ineffective assistance of trial counsel. Defendant further claimed that his counsel failed to investigate certain evidence, but defendant provided no proof as to what that investigation would have revealed had counsel undertaken it. He also contended that his counsel on the direct appeal had rendered ineffective assistance in failing to raise several issues.

In a thorough oral opinion issued on January 28, 2009, Judge James Den Uyl, who did not preside over defendant's 2004 trial, rejected defendant's PCR claims. In his opinion, the judge rejected defendant's contention that his attorney should have objected to various portions of the prosecutor's summation. The judge found that those arguments were barred because they were raised and rejected on direct appeal. See R. 3:22-5. Additionally, the proposed objections would have been without merit, and in any event the prosecutor's comments could not have changed the outcome of the trial.

The judge found that a fleeting reference to defendant's street name of "Red Bin Laden" was not plain error justifying reversal of the conviction. All of the participants used nicknames, and it was appropriate to refer to the nicknames to establish their identity. With the exception of the one reference to "Bin Laden," defendant was consistently referred to as "Red." Counsel's failure to highlight the one reference to "Bin Laden" by objecting to it, was a reasonable trial strategy and not ineffective assistance. Judge Den Uyl concluded that the State had no legal duty to tell the jury that Barber had agreed to testify against defendant as part of a plea agreement, a subject covered extensively in Barber's cross-examination.

The judge also rejected defendant's argument "that no instruction was given that the co-defendant's guilty plea could [not] have been used against Santos." The judge reasoned that the issue had been raised and rejected on the merits on defendant's direct appeal. Therefore defendant could not establish that his trial counsel had been ineffective in failing to ask for such an instruction "or that he was prejudiced as a result" of that failure.

The judge next addressed defendant's argument that "trial counsel was ineffective for failing to object to Ernesto Barber appearing before the jury in prison clothing." While recognizing that a defendant would plainly be prejudiced if either the defendant or a defense witness appeared in prison clothing, the judge found it was "unclear how Barber, who appeared as a State's witness, prejudiced defendant by appearing in prison clothing." Because defendant failed to establish that Barber's appearance in prison garb violated any case law existing at the time of the trial in 2004, nor how this alleged trial error caused prejudice, he had not shown that his counsel was "deficient" or "that [defendant] was prejudiced as a result."

Judge Den Uyl rejected defendant's argument "that counsel failed to object to the [trial] [c]ourt urging the jury to expedite deliberations." The judge concluded that "this assertion is not accurate in terms of the [c]ourt's instruction." Contrary to defendant's contention, the judge also found that the trial court did not allow the sheriff's officers to single out co-defendant Worthy for more courtroom security procedures. Rather, "for any witness currently in custody, . . . a Court Officer stood between the witness stand and the jurors. The safety precaution was reasonable and did not prejudice the defendants."

The judge also rejected defendant's claim that trial counsel should have moved for a severance of his trial from that of the co-defendants. He concluded that such a motion would have been properly denied, and that the joint trial did not prejudice defendant. Judge Den Uyl rejected defendant's claim that his trial counsel failed to investigate certain trial exhibits, because defendant produced no evidence as to what an investigation would have revealed or how it would have benefited his defense. The judge reached a similar conclusion with respect to defendant's argument that trial counsel should have investigated a potential witness, Steven Bennett. Based on the available evidence concerning what Bennett told the police, the judge concluded that Bennett's testimony would probably have been more inculpatory than helpful to the defense. The judge similarly found that defendant had not provided record support to substantiate his assertions that his trial counsel should have done a better job of cross-examining two of the State's witnesses. He also rejected defendant's claim that his trial counsel should have moved for a mistrial.

Finally, the judge found no merit in defendant's contention that his appellate counsel was ineffective. He found no evidence to support defendant's claim that the trial judge had ex parte communication with a deliberating juror and hence no basis for appellate counsel to have raised that issue. The judge also found that the prosecution did not attempt to shift the burden of proof to defendant, and hence appellate counsel was not ineffective for failing to raise that claim.

Finding no prima facie case of ineffective assistance of counsel, the judge denied defendant's request for an evidentiary hearing and denied the PCR petition.

II

We analyze ineffective assistance of counsel claims using the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Preciose, 129 N.J. 451, 463 (1992); State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of the Strickland test requires a defendant to establish that counsel's performance was deficient. Preciose, supra, 129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694). See also Fritz, supra, 105 N.J. at 60 61.

In determining whether counsel was ineffective, we will not second-guess the trial attorney's reasonable trial strategy. We review counsel's performance with extreme deference and "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Fisher, 156 N.J. 494, 500 (1998) (quoting Fritz, supra, 105 N.J. at 52). Moreover, even if counsel was ineffective, under the second Strickland prong prejudice is not presumed and must be proven by the defendant. Ibid.

In appealing the denial of his PCR petition, defendant raises the following points for our consideration:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION AND SENTENCE VACATED BECAUSE THE TRIAL COURT'S FAILURE TO TAKE ANY AMELIORATIVE ACTION WHEN STATE'S WITNESS ERNESTO BARBER TESTIFIED IN PRISON GARB, AND THE TRIAL COURT'S FAILURE TO ADEQUATELY INSTRUCT THE JURY ON HOW TO ASSESS THE GUILTY PLEA OF A TESTIFYING CO-DEFENDANT VIOLATED THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL.

A. The Defendant's Post-Conviction Relief Claims Were Not Procedurally Barred Under R. 3:22- 4 Or 3:22-5 Because Based On The Supreme Court's Decisions In State v. Adams, 194 N.J. 186 (2008) And State v. Kuchera, 198 N.J. 482 (2009), They Involved A Violation Of The Defendant's Fourteenth Amendment Constitutional Due Process Right To A Fair Trial, And Because They Were Not "Identical To" Or "Substantially Equivalent To" The Issues Raised On Direct Appeal.

 

B. Even If The Appellate Division Previously Considered The Arguments Raised, The Defendant's Petition Was Not Procedurally Barred Because Based On The Supreme Court's Subsequent Decisions In State v. Adams Supra, And State v. Kuchera, Supra, Enforcement Of R. 3:22-5 Resulted In A "Fundamental Injustice."

 

C. Defendant's Petition Was Not Procedurally Barred Because A Sentence Imposed On A Defendant Whose Conviction Was The Result Of The Deprivation Of A Fundamental Constitutional Right Is "Illegal."

 

POINT II: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO ERNESTO BARBER TESTIFYING IN PRISON GARB; TRIAL COUNSEL'S FAILURE TO CALL STEVEN BENNETT AS A DEFENSE WITNESS; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY CHARGE AND TO THE PROSECUTOR'S USE OF THE DEFENDANT'S "BIN LADEN" ALIAS; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S COMMENTS THAT IMPROPERLY ENHANCED THE CREDIBILITY OF STATE'S WITNESSES; AND TRIAL COUNSEL'S FAILURE TO MOVE FOR SEVERANCE OF THE DEFENDANT; SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON APPEAL.

 

POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

 

POINT IV: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

 

Having reviewed the record, we conclude that, except as addressed below, these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Den Uyl's cogent and comprehensive opinion. We add the following comments.

Defendant contends that the trial court should not have permitted Barber to testify wearing prison garb, and his trial counsel was ineffective for failing to object. In State v. Artwell, 177 N.J. 526, 530 (2003), the Supreme Court held that defense witnesses may not appear before the jury in prison garb. We did not address the issue of prosecution witnesses appearing in prison garb until 2006, two years after the trial in this case. See State v. Russell, 384 N.J. Super. 586 (App. Div. 2006). And, the Supreme Court did not decide the issue until March 17, 2009, almost two months after Judge Den Uyl rendered his opinion in this case. See State v. Kuchera, 198 N.J. 482 (2009). Defendant's trial counsel cannot be deemed ineffective for failing to raise an objection based on cases not decided until long after the trial was concluded.

Further, although Kuchera held, as a matter of judicial policy, that absent unusual circumstances neither parties nor witnesses to a criminal trial should appear in prison garb, the Court also held that a violation of the policy was subject to the harmless error standard. Id. at 501. The Court acknowledged that the appearance of a State witness in prison garb could actually help the defense in some situations:

Here, defendant did not object to [State witness] Kettle's appearance in prison garb; on the contrary, defendant sought to capitalize on it and what it represented. And, defendant made no showing whatsoever that the trial court abused its discretion in allowing Kettle to testify wearing prison garb or that defendant otherwise was prejudiced thereby. In those circumstances, any error that might have arisen as a result of allowing Kettle to testify in prison garb clearly was harmless.

 

[Id. at 502.]

 

That observation is equally pertinent to the case before us, where the defense strategy was to discredit Barber as a criminal whose testimony was motivated by a desire to retain the benefit of a favorable plea bargain.

Because Kuchera did not recognize or clarify existing law but rather declared a new judicial policy, it is highly unlikely that the Court's holding would apply retroactively to a collateral challenge to a defendant's conviction. See State v. Natale, 184 N.J. 458, 492-94 (2005) (discussing principles applicable to retroactivity). However, even if Kuchera were applied to this case, we could find no prejudicial error in Barber's appearing before the jury in prison garb, or in the trial court's failure to instruct the jury to disregard attire. See Kuchera, supra, 198 N.J. at 501-02.

We turn next to defendant's contention that his conviction should be overturned because the trial court failed to instruct the jury that they could not consider Barber's guilty plea as proof of defendant's guilt. See State v. Adams, 194 N.J. 186, 207-08 (2008); State v. Stefanelli, 78 N.J. 418, 435 (1979). Defendant raised that issue on direct appeal, and we rejected his contention on the merits. Therefore, he is barred from raising the issue again in a PCR petition. R. 3:22-5.

Moreover, even if we consider his argument, presented as a contention that his trial counsel was ineffective for failing to request the instruction, we would find no basis to reverse defendant's conviction. Adams held that the trial judge should have sua sponte instructed the jury concerning the proper use of a co-defendant's guilty plea; but, because trial counsel had not requested such an instruction, the Court applied the plain error rule in deciding not to reverse the defendant's conviction. Adams, supra, 194 N.J. at 208-09.

However, even if we consider defendant's case as though his trial counsel had requested the instruction and the trial court had erroneously refused to give the charge, it would not require a different result here. On this record, we conclude beyond a reasonable doubt that the jury did not convict defendant based on an improper inference that Barber's guilty plea, to theft of the Jeep in which the murder occurred, proved that defendant committed the murder. See State v. Macon, 57 N.J. 325, 340-41 (1971). In addition to Barber's eyewitness testimony, the State presented defendant's confession to the murder, testimony from Halim Shabazz that defendant threatened to shoot Roy three days before the murder, and evidence of defendant's fingerprints in the Jeep. If there was error in failing to give the charge, it was harmless. Ibid.

Because defendant did not present a prima facie case that his trial or appellate counsel rendered ineffective assistance, Judge Den Uyl properly denied the PCR petition without conducting an evidentiary hearing. See State v. Preciose, supra, 129 N.J. at 462.

A

ffirmed.

1 Barber pled guilty to theft of the Jeep in which Roy was sitting when defendant shot him.