STATE OF NEW JERSEY v. MAURICE ROMERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4246-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE ROMERO,

Defendant-Appellant.

_______________________________

April 2, 2013

Submitted: March 20, 2013 - Decided:

Before Judges Axelrad and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 87-04-0326.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Maurice Romero appeals from the denial of his first petition for post-conviction relief (PCR), without an evidentiary hearing, in which he alleged ineffective assistance of appellate counsel in failing to raise an issue on direct appeal. We affirm.

Defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), (4), (6) and (5) respectively (counts three, four, five, and six); first-degree armed robbery, N.J.S.A. 2C:15-1 (count seven); second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count eight); and third-degree theft, N.J.S.A. 2C:20-3(a) (counts nine and twelve). On August 4, 2008, the court dismissed the convictions on counts two, three, five, and six, and count nine was merged with count seven. Defendant was sentenced to a term of life imprisonment with a thirty-year parole disqualifier on count one, a twenty-year term with a ten-year parole disqualifier on count four, and a five-year term on count twelve, all consecutive. The court also imposed a concurrent twenty-year term with a ten-year parole disqualifier on count seven and a ten-year term with a five-year parole disqualifier on count eight.

Defendant appealed and we affirmed defendant's conviction and sentence in an unpublished opinion. State v. Romero, No. A- 315-88 (App. Div. October 4, 1990). We described the trial evidence as follows:

[E.S.], age 86, was raped, beaten and died several minutes later. Her husband [M.S.], age 94, who was confined to bed, was also beaten about the face. The State's case was based mostly upon the testimony of [co-defendant] Anthony Evans. He indicated that defendant Maurice Romero, [co-defendant] Casey Terry and he set out to rob the [S.] residence at approximately 8:30 p.m. Terry broke into the house using a knife and, wearing masks and gloves, defendant and Terry went inside while Evans maintained a lookout outside. However, from a window, Evans saw defendant look about the house for money as Terry sexually assaulted and hit the elderly woman. Then, while Terry searched the house, defendant sexually assaulted the woman while threatening her with a knife. Terry raped the woman three times and repeatedly beat her while defendant raped her twice. Defendant and Terry left the house approximately 30-45 minutes later.

Defendant testified and admitted that all three of them had gone to the [S.] house that night with the intention of robbing them and that he and Terry entered the house while Evans remained outside as a lookout. He also admitted that Terry beat and raped the woman while he searched the house. He insisted that he had only attempted to sexually assault the woman. Ultimately, they left without any money. As defendant was leaving, however, he claimed that he saw the victim moving and that she was not dead. Defendant contended that approximately five hours after this incident, Terry went back to retrieve the knife at which time he again raped and beat the victim, after which he set fire to the house. This caused the victim to die of smoke inhalation. . . .

The following morning [E.S.'] dead body, bloody, naked and beaten was found on the floor a few feet from her husband by officials. [M.S.] was beaten but was still alive in his hospital bed. The house was ransacked and there was smoke and fire damage to the master bedroom.

That same morning, Evans heard about the victim's death. He went to the prosecutor's office and voluntarily told everything he knew about the night in question and agreed to testify against the others. Later that same morning, defendant also agreed to go to the prosecutor's office where he gave the police an incriminating statement.

Dr. Sinha, who performed the autopsy of [E.S.] . . . attributed the cause of death to "acute cardiac arrhythmia, associated with severe coronary arteriosclerosis and secondary to forcible rape and sodomy." He asserted that she died within ten minutes of the beating. Dr. Sinha also acknowledged that a toxicologist's report showed 38% carbon monoxide in the blood, indicating the inhalation of smoke, but denied that this was a fatal amount.

At trial, defendant's expert, a forensic pathologist, insisted that the victim's cause of death was smoke inhalation superimposed on a preexisting severe heart disease and was not due to the beating.

[Slip op. at 10-12.]

Terry had pled guilty to the murder of E.S. and at the time of trial was awaiting sentencing. Terry did not testify. Defense counsel sought to introduce into evidence select parts of Terry's statement to police that favored defendant, i.e., Terry's return to the house, while keeping out the portions that inculpated defendant. The trial court denied this request, finding the statements inadmissible as prejudicial and confusing. In his motion for a new trial and on appeal, defense counsel raised a variety of issues respecting Terry's statement, including the no-adverse inference charge as to Terry's choice not to testify, the accomplice liability charge, and the claim of unfair publicity resulting from the media's publication of portions of Terry's statement that it heard during the judge's ruling (outside of the presence of the jury). He also asserted that the verdict as to counts one and two were against the weight of the evidence. Both the trial court and our court rejected all of defendant's arguments.

The Supreme Court denied defendant's petition for certification on December 24, 1990. State v. Romero, 127 N.J. 324 (1990).

In May 1993 defendant filed a pro se PCR petition. Defense counsel was assigned, but for unknown reasons, nothing happened until April 11, 2002, when defendant filed another PCR petition. In 2008, we reversed the trial court's dismissal of the petition as untimely and remanded the matter for a hearing on the merits of the petition. State v. Romero, No. A-4192-06 (App. Div. Oct. 10, 2008) (slip op. at 11). Defense counsel and defendant submitted supplemental briefs, raising a variety of issues, the only one pertinent to this appeal involved the claim of ineffective assistance of appellate counsel in failing to challenge the trial court's ruling precluding admission of exculpatory portions of Terry's statement.

Following oral argument on December 1, 2010, Judge James Den Uyl found that an evidentiary hearing was not warranted and denied defendant's PCR petition in a comprehensive oral opinion, memorialized in an order of December 3, 2010. The judge found this argument was procedurally barred by Rule 3:22-5 as previously adjudicated on the merits, though rephrased on PCR. The judge additionally concluded that defendant "fail[ed] to show how the exclusion of Terry's statement prejudiced him during the trial." Judge Den Uyl reasoned that "[t]he statement, although containing sections allegedly exculpatory to [defendant], also contain several sections inculpating [defendant] in the crime for which he was on trial. Trial counsel's arguments attest to the presence of statements harmful to [defendant]." This appeal ensued.

Defendant renews this argument on appeal. Based on our review of the record and applicable law, we find defendant's arguments to be without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by the PCR judge.

If a defendant makes out a prima facie case of ineffective assistance at trial by a preponderance of the evidence, viewing all facts in the light most favorable to the defendant, the court has the discretion to hold an evidentiary hearing and make a determination on the merits of defendant's claim. R. 3:22-10; State v. Preciose, 129 N.J. 451, 459-64 (1992). A court will not grant an evidentiary hearing "if the defendant's allegations are too vague, conclusory or speculative[.]" R. 3:22-10(e)(2).

Defendant's challenges respecting Terry's statement were raised and rejected in his motion for a new trial and on direct appeal. Moreover, to the extent that appellate counsel did not raise the issue exactly as worded by defendant, we discern no prejudice to defendant. In determining whether appellate counsel raised the proper issues on direct appeal, we recognize that the process of "'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d 434, 445 (1986) (citation omitted).