STATE OF NEW JERSEY v. CARLOS SANTIAGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3944-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS SANTIAGO,

Defendant-Appellant.

____________________________

June 16, 2011

Submitted December 6, 2010 - Decided

Before Judges Grall and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-12-4311.

Carlos Santiago, appellant pro se.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for the respondent (LeeAnn Cunningham, Special Deputy Attorney General/Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the March 17, 2009 order denying his third petition for post-conviction relief (PCR). In his brief, defendant characterizes this order as one denying his motion to reopen his second PCR petition, which had been denied in an order of June 23, 2008. Because defendant has failed to include his PCR petition in his appendix, we are unable to address that claim. Our review of the record presented provides us with a sufficient basis to assess the merits of his remaining claims, and convinces us that the order on appeal must be affirmed.

Tried to a jury in 1993, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); knowing/purposeful murder, N.J.S.A. 2C:11-3(a)(1), (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). He was sentenced to an aggregate term of thirty years with a thirty-year parole ineligibility period.

Defendant appealed, claiming (1) the verdict was against the weight of the evidence, and (2) the judge erred in charging the jury on causation. We affirmed. State v. Santiago, No. A-3097-93 (App. Div. June 21, 1996), (slip. op. at 3-4). In that opinion, we summarized the State's evidence as follows:

On June 13, 1992, James Esposito and Denise Miller were walking to the basement of a building at 142 Broad Street, Newark, when Miller heard her friend, Helga Guzman[,] yelling from the basement of the building. Esposito and Miller entered the basement and observed defendant standing between Guzman's legs. Guzman was [lying] on her back on a bed. Defendant had a "little pocket knife" in his hand that he moved up and down.

Guzman's face was "smashed in" and bloodied, and when she saw Miller, Guzman asked for help, and stated that defendant was "killing" her. When defendant saw Miller and Esposito he told them to leave and to mind their own business. As Esposito and Miller backed away from defendant, he stabbed Esposito in the arm. As Miller was leaving, she observed defendant resume his position between Guzman's legs, and move his hand up and down while holding the knife. Miller called the police after she left the building.

Brenda Edwards was in the area of 142 Broad Street during defendant's attack on Guzman. She heard a woman crying for help and saw Esposito and Miller exit the building. A few moments later, defendant, who was covered with blood, ran out of the building and bumped into Edwards, causing both of them to fall to the ground. Defendant quickly got up and began running. By this time, the police had arrived near the scene and began chasing defendant. Shortly thereafter, defendant was arrested and returned to the scene where he was identified by Esposito, Miller and Edwards.

When the police entered the basement, they observed a pool of blood and a large shattered glass jug. They also found Guzman, who was badly injured, unconscious and barely breathing. Guzman had a "large gash" on her forehead, cuts about her face and mouth, and her mouth was full of fluid. In addition, her teeth had been broken.

Guzman was admitted to the hospital in critical condition with "severe fractures of the upper portion of the face and a lot of lacerations in the area of the mouth." The severity of Guzman's injuries caused blood to enter her lungs, thereby making it difficult for her to breathe.

In the early morning hours of June 15, 1992, while still hospitalized, Guzman died. Although Guzman suffered a heart attack, the State's expert testified that she would not have died but for the injuries she received from "the beating."

[Id. at 2-3.]

We rejected defendant's weight-of-the-evidence contention, concluding that there was "no question that based on the proofs presented, the jury could find beyond a reasonable doubt that defendant acted purposely or knowingly with intent to cause death or serious bodily injury resulting in death . . . . [W]e [saw] no failure of proof of causation." Id. at 4. Regarding his second contention, we "agree[d] that the court erred in charging the jury on causation." However, we concluded that "the error was . . . of no moment because of the absence of any real causation issue." We were "satisfied that the error was harmless beyond a reasonable doubt." Ibid. The Supreme Court denied certification. State v. Santiago, 146 N.J. 499 (1996).

In July 1997, defendant filed his first PCR petition, claiming (1) ineffective assistance of trial counsel for failing to communicate with him, to object to an improper jury charge, to retain a medical expert to examine the victim's records and to "properly investigate;" (2) ineffective assistance of appellate counsel; and (3) failure of the State "to prove all of the elements of murder." Following a hearing, Judge Donald J. Volkert, Jr., who had presided over defendant's trial and sentencing, issued a thorough decision denying relief on the merits.

Defendant appealed, raising one issue, namely that the judge erred in failing to grant an evidentiary hearing because there was "an indication that trial counsel did not properly investigate the circumstances relating to the victim's fatal heart attack." We affirmed "substantially for the reasons set forth in [the PCR judge's] fifteen[-]page . . . decision." State v. Santiago, No. A-0458-98 (App. Div. April 5, 2000) (slip op. at 2).

In January 2001, defendant filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C.A. 2254, raising the same claims asserted in his PCR petition. In December 2001, a judge denied the petition in a thirteen-page opinion. Santiago v. Hendricks, Civil Action No. 01-261 (NHP) (D.N.J. December 5, 2001). Defendant's appeal to the Court of Appeals for the Third Circuit was denied.

In March 2005, defendant filed his second PCR petition. Based upon Judge Volkert's written decision denying that petition, it appears that defendant raised the same issues as in his first petition, adding a claim of ineffective assistance of his PCR counsel. The judge dismissed the claim of ineffective assistance of trial counsel for failure to read discovery and to move to suppress defendant's statement, as time-barred. The judge dismissed seven additional claims of ineffective assistance of trial counsel for defendant's failure to "proffer[] . . . compelling evidence" or even "one modicum of evidence" to support his claims. The judge dismissed the remaining ineffective assistance of trial counsel claims as "wholly frivolous" and "factually incorrect." Finally, the judge denied defendant's claims of ineffective appellate and PCR counsel, finding that "defendant has already filed every claim that can be litigated in every forum that exists and has not supplied any legitimate basis for relief."

Defendant did not appeal from the order denying his second PCR petition. Instead, he filed a third petition in January 2009. Judge Stephen Bernstein denied this petition without a hearing. In his ten-page written decision, the judge identified defendant's issues as follows: (1) denial of his constitutional right to effective assistance of trial, appellate and PCR counsel; (2) ineffective assistance of trial counsel for failing "to retain an expert witness and/or to fully cross-examine the State's medical examiner"; (3) ineffective assistance for counsels' [sic] failure to "discover and raise these issues at earlier proceedings"; and (4) his conviction was "constitutionally flawed" due to "fatally flawed jury instructions on murder because the jury was never instructed on specific intent." The judge found these issues time-barred under Rules 3:22-4, -5 and -12; the judge noted further that Judge Volkert had substantively addressed all of these issues in his two prior decisions. Judge Bernstein concluded that defendant had "failed to demonstrate a reasonable likelihood of success on the merits. The [c]ourt's analysis would not be affected by an evidentiary hearing."

On appeal, defendant raises the following contentions for our consideration:

POINT I

THE LOWER COURT ERRED BY DENYING THE APPELLANT'S MOTION TO REOPEN HIS SECOND POST-CONVICTION [SIC] IN ORDER FOR HIM TO CURE THE DEFICIENCIES THAT THE LOWER COURT CITED IN ITS JUNE 23, 2008 WRITTEN OPINION.

POINT II

APPELLANT'S CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND POST-CONVICTION [SIC] RELIEF COUNSEL'S [SIC] WERE VIOLATED, THEREBY DEPRIVING THE APPELLANT OF HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION AND ITS STATE AND FEDERAL PRECEDENTS.

(A) Constitutional Violations.

(B) Trial Counsel was Ineffective for Failing to Present a Defense; Failure to Raise a Self-Defense Claim when trial counsel, with knowledge, raised this claim during the Miranda Hearing, thereby depriving Appellant's Rights to a Fair Trial.

(C) Appellate Counsel was Ineffective for Failing to Raise on Direct Appeal the Egregious Errors of Trial Counsel, thereby Depriving Appellant of his Constitutional Right to an Adequate Appeal.

(D) The Initial Post-conviction Counsel was Ineffective for Failing to Raise the issue of Ineffective Assistance of Counsel on Appeal, when PCR Counsel Raised the Claim before the PCR Court, thereby requiring reversal of his conviction and/or an evidentiary hearing be held on his claims.

POINT III

APPELLANT WAS DEPRIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHEN COUNSEL, ARMED WITH THE AUTOPSY REPORTS REVEALING THAT THE VICTIM DID NOT DIE AS A DIRECT RESULT OF APPELLANT'S ACTIONS, FAILED TO RETAIN AN EXPERT WITNESS AND/OR TO FULLY CROSS-EXAMINE THE STATE'S MEDICAL EXAMINER.

POINT IV

APPELLANT ARGUE[D] HIS CONVICTION WAS UNCONSTITUTIONALLY SECURED DUE TO: FATALLY FLAWED INSTRUCTIONS ON MURDER BECAUSE THE JURY WAS NEVER INSTRUCTED ON SPECIFIC INTENT IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW, REQUIRING REVERSAL OF HIS CONVICTION.

POINT V

COUNSEL'S [SIC] WERE INEFFECTIVE FOR FAILING TO DISCOVER AND RAISE THESE ISSUES AT EARLIER PROCEEDINGS.

With respect to defendant's first point, as noted, he has not provided us with his petition; nor does defendant address the contents of his petition in his brief. We are, therefore, unable to review whatever documents he may have submitted in support of his "motion to re[-]open his second [PCR petition]."

Rule 2:6-1(a)(1)(I) requires an appellant to include in the appendix to his brief "such . . . parts of the record . . . as are essential to the proper consideration of the issues." Because "filed documents in the action bearing on the issues on appeal are required to be included in the appendix[,] . . . the [a]ppellate [c]ourt may decline to address issues requiring review of those parts of the trial record not included in the appendix." Pressler, N.J. Court Rules, comment 1 on R. 2:6-1 (2011); see Cmty. Hosp. Group, Inc. v. Blume Goldfaden Berkowitz Donney Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005) (noting that an appellate court is not "obliged to attempt review of an issue when the relevant portions of the record are not included") (citing Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002)). We, therefore, decline to address this issue.

Defendant's remaining issues are before us for the third time. They "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Bernstein's written opinion of March 17, 2009.

Affirmed.