STATE OF NEW JERSEY v. CARLOS ALVES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6331-07T46331-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS ALVES,

Defendant-Appellant.

_________________________________

 

Submitted March 3, 2010 - Decided

Before Judges Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-10-3250.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial in 2001, defendant Carlos Alves was convicted of murder, N.J.S.A. 2C:11-3(a), for strangling to death his girlfriend, Maria Lobo. Defendant and Lobo had resided with one another for a decade, and, at the time of the homicide, they were cohabitating in a basement apartment in Newark.

According to the State's proofs, defendant and Lobo had dinner together in the apartment on the evening of Wednesday, August 11, 1999. Later that night, defendant strangled Lobo. The following day, Thursday, August 12, defendant booked and boarded a flight to Portugal, where his father was ill. Lobo, a cleaning woman, did not appear at her work sites on either that day or the following day, Friday, August 13. Her dead body was found on the sofa on Saturday, August 14, after police and firefighters broke into the locked apartment. She was wearing the same clothes that a neighbor had seen her wearing on Wednesday, August 11.

Defendant was located in Portugal and he returned to the United States the next day. After receiving Miranda warnings, he was interviewed by the police in Portuguese, and he gave a formal statement. In his statement, defendant denied that he had killed Lobo. He insisted that they had both left the apartment on the morning of Thursday, August 12, stopped at a bakery, and then went off to their respective jobs. He maintained that he was in Portugal when Lobo was fatally attacked. At trial, his counsel suggested that the murderer could have been a third-party intruder into the apartment, because Lobo's pocketbook and keys were missing.

There was competing forensic proof at trial contesting the time of the victim's death, including an analysis of the undigested food found in her stomach post mortem. The State's expert, the medical examiner who performed the autopsy, opined that the victim died between sixty and seventy-two hours before her body was discovered around noon on August 14, thereby supporting the State's contention that she was killed on Wednesday, August 11. The medical examiner further opined that the victim had died approximately two hours after her last meal. A defense expert, on the other hand, estimated that the victim had died only thirty-six to forty-eight hours before she was found (i.e., after defendant had already departed to Portugal).

Defendant did not testify at trial. However, his police statement was admitted into evidence.

During the course of the trial, one of the jurors went out over the weekend to look at the parking signs in the neighborhood where the victim lived, which prohibited parking at specified hours of certain days. This suggested that, because no ticket was left on the car, the victim might have parked her car after defendant flew to Portugal. The juror discussed the results of that on-site inspection with the other jurors. The trial court excused that juror and replaced him with an alternate.

On the second day of deliberations, the jury found defendant guilty of first-degree murder. The trial judge imposed a sentence of thirty years, with a thirty-year period of parole ineligibility.

Defendant's conviction was sustained on direct appeal in an unpublished opinion. State v. Alves, No. A-4355-00 (App. Div. Jan. 23, 2003), certif. denied, 178 N.J. 455 (2004). Among other things, we specifically rejected defendant's arguments that defendant's police interview should have been suppressed and that the excused juror had tainted the remaining jurors. Id. (slip op. at 11-12).

Defendant then filed an application for post-conviction relief ("PCR"), arguing that his trial attorney and his counsel on direct appeal were ineffective in various respects. The PCR application was denied by the trial court, without an evidentiary hearing, as both procedurally improper and substantively unmeritorious.

Defendant now appeals the denial of PCR relief. His attorney raises the following points:

POINT I

MR. ALVES IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE TRIAL COURT ERRED IN DECIDING THAT MR. ALVES'S CLAIM REGARDING THE OMISSION OF AN ALIBI INSTRUCTION WAS BARRED BY R. 3:22-4 OR, IN THE ALTERNATIVE, APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON DIRECT APPEAL.

POINT III

THE CLAIMS IN MR. ALVES'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

With respect to the claim of ineffective assistance of counsel, defendant particularly asserts that his trial attorney was deficient in failing to investigate and subpoena three persons who might have supported defendant's alibi: Conseisao Horta, who allegedly saw Lobo alive on Thursday evening, August 12; and two unnamed individuals who drove with defendant to the airport. Defendant also asserts that his trial attorney failed to discuss the case with him sufficiently. In addition, counsel incorporates the various supplemental points that defendant raised, pro se, with his PCR petition. Those include assertions that defendant had difficulty hearing the interpreter at trial, and that his trial counsel had improperly discouraged him from testifying in his own behalf.

We agree with the trial court that most of defendant's arguments are procedurally barred, either because they could have been raised on direct appeal and were not, or because they were in fact raised but decided adverse to defendant. See R. 3:22-4 and 3:22-5. To the extent, however, that such procedural bars do not apply because they involve claims of ineffectiveness of trial and appellate counsel, we concur with the trial court that they do not present a prima facie case warranting PCR or an evidentiary hearing. Consequently, we affirm the dismissal of defendant's PCR petition, substantially for the cogent reasons articulated in Judge Jerome St. John's written opinion dated April 3, 2008. We add only a few comments.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Defendant's arguments fail to surmount this well-settled two-part test of counsel's ineffectiveness. We are unpersuaded that his trial or appellate counsel deviated from professional standards of care. The trial transcript reflects a case that was vigorously tried by both sides; in fact, the trial judge complimented both counsel at the end of the case for their advocacy. The supposition that Horta, who has not been located, or the two airport ride companions would have provided testimony leading to defendant's exoneration is speculative at best. Defendant supplies no certifications from any of these three persons to corroborate his belief that, if they had testified, their accounts would have helped his cause. Under the circumstances, the PCR judge did not err in ruling on the application without an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 476 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We also detect no reversible error in the absence of an alibi charge. Such a special instruction was not requested at the charge conference, and was only sought extemporaneously by defendant's trial attorney after the prosecutor had briefly alluded to burdens of proof in his closing argument. The trial judge declined to give a special alibi charge, noting that the standard jury charge was replete with reminders that the defendant is presumed innocent, has no burden to prove anything, and that the State must prove all elements of the murder statute, including identity of the killer, beyond a reasonable doubt. The record does not present an "unduly complicated" scenario where an alibi charge is necessary. See State v. Echols, 199 N.J. 344, 364 (2009) (sustaining the denial of PCR relief to a defendant in a situation where an alibi charge was not given). The jurors readily would understand here that defendant was maintaining that he was in or en route to Portugal when Lobo was strangled, while the State maintained that he was not. Although an alibi charge might have punctuated the State's burden, it was not required under the circumstances.

Finally, we have duly considered the remaining arguments raised by defendant pro se and by his present counsel. We are satisfied that they lack merit and require no discussion. R. 2:11-3(e)(2).

 
Affirmed.

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

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9

A-6331-07T4

April 19, 2010