STATE OF NEW JERSEY v. RICARDO CEPATES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO CEPATES,

Defendant-Appellant.

_____________________________

March 24, 2014

Submitted October 8, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-0465.

Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief; Matthew P. Tallia, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Ricardo Cepates appeals from a July 29, 2011, Law Division order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). He was convicted after two severed jury trials, of multiple counts of aggravated sexual assault, kidnapping, robbery, and other crimes. Having reviewed defendant's arguments in light of the facts and applicable law, we affirm.

I.

We reviewed the circumstances of the offenses in our opinion affirming defendant's convictions. State v. Cepates, No. 4079-04 (App. Div. May 28, 2008) (slip op. at 4-8) (Cepates I), certif. denied, 196 N.J. 466 (2008). It suffices to say here that over a two-year period between 2001-2003, six women were raped in New Brunswick. In four separate incidents involving five women, the assailant confronted the victims on a public street in one case, a woman and her teenage daughter. He kidnapped the victims, took them to a secluded spot, and threatened them with a weapon or other physical harm. He then sexually assaulted them. In a fifth case, he entered the victim's home by force, threatened her and her children, and sexually assaulted her.

Defendant was identified in December 2003 after a DNA analysis linked him to the sexual assaults. In April 2004, a Middlesex County grand jury returned a forty-seven-count indictment, which we previously reviewed in detail. Id. at 2-3. The trial court severed the trial of the in-home assault from the others. The court otherwise denied defendant's pre-trial motion to conduct a separate trial for each incident.

At the two trials, the State relied on persuasive DNA evidence that linked defendant with the five victims from whom usable samples of sperm were collected. Two women in the first trial, and the adult victim in the second trial, made in-court identifications of defendant. All the victims were Hispanic or appeared Hispanic, and they all identified their assailant as a Hispanic male. Defendant was from Honduras, and two victims testified that he spoke Spanish with a Honduran accent. Another victim testified that he had a Central American accent. All the assaults occurred within a short distance of defendant's home.

After the jury deliberated about two hours, defendant was found guilty of all charges presented in the first trial. After deliberating slightly longer in the second trial, the jury found defendant guilty of all charges presented in the second trial, except for a count charging aggravated assault by causing bodily injury with a deadly weapon.1

In the aggregate, the court imposed a 139-year-sentence, after imposing consecutive sentences related to each of the six adult victims, plus an additional consecutive term for the two child victims. We did not find the sentence excessive, but remanded for reconsideration in light of State v. Natale, 184 N.J. 458 (2005). Other than correct an error in its judgment of conviction, the court did not alter its sentence. We then affirmed the final sentence on an ESOA calendar. State v. Cepates, No. A-3728-08 (App. Div. Feb. 9, 2010) (Cepates II).

II.

In his pro se petition, defendant presented the following claims:

Ground I: TRIAL COUNSEL'S FAILURE TO SUBMIT A MOTION FOR CHANGE OF VENUE OR FOREIGN JURY DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY AN IMPARTIAL JURY OF THE STATE, AS PROVIDED BY THE UNITED STATES CONSTITUTION, Amendment 6; AND N.J. CONSTITUTION, Art. 1, Par. 10.

Ground II: TRIAL COUNSEL'S FAILURE TO PERFORM INDEPENDENT DNA TESTING OF THE EVIDENCE, AND FAILURE TO ESTABLISH AN EFFECTIVE DEFENSE, DENIED DEFENDANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND A FAIR TRIAL AS PROVIDED BY THE UNITED STATES CONSTITUTION, Amendment 6 and 14; AND N.J. CONSTITUTION, Art. 1, Par. 10.

GROUND III: DEFENDANT'S RIGHTS UNDER ARTICLE 36 OF THE VIENNA CONVENTION ON CONSULAR RELATIONS WAS WRONGFULLY DENIED.

In a supporting brief by appointed counsel, defendant argued that trial counsel was ineffective by failing to seek a limiting instruction each time "other crimes" evidence was admitted, citing, among other authorities, State v. Blakney, 189 N.J. 88 (2006), and State v. Angoy, 329 N.J. Super. 79 (App. Div.), certif. denied, 165 N.J. 138 (2000). Defendant also argued that appellate counsel was ineffective by failing to raise the issue.2 Although not explicitly stated, the argument pertained only to the first trial, involving the testimony of multiple victims. Defense counsel acknowledged that the trial court appropriately instructed the jury regarding the use of other crimes evidence at the close of trial.

PCR counsel also argued that trial counsel was ineffective by failing to seek a change in venue, or the empanelling of a foreign jury, based on pre-trial publicity. However, after receiving the State's opposition, counsel essentially jettisoned that point, acknowledging that trial counsel and the court "covered those issues."

The PCR court denied the petition in an oral opinion. The court applied the well-settled two-prong test for determining whether defendant was entitled to PCR. SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment; and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J.42, 58 (1987) (adopting Strickland standard).

Citing Angoy, supra, the court acknowledged that it is preferable that the court give a limiting instruction regarding other crimes evidence immediately after its admission, as well as at the close of trial. However, as in Angoy, the court found no prejudice. The court noted that the evidence against defendant was overwhelming. There were only one-and-a-half days of testimony after the last victim testified. After a non-trial day and the weekend, the jury heard summations and a final charge that included the model other crimes instruction.3

On appeal, defendant renews his argument regarding the failure to request limiting instructions after other crimes evidence was introduced. He argues:

POINT ONE- THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE TRIAL COUNSEL FAILED TO REQUEST A LIMITING INSTRUCTION AT THE TIME THE STATE PRESENTED OTHER-CRIMES EVIDENCE AND HAD COUNSEL OBTAINED A TIMELY LIMITING INSTRUCTION, THE JURORS WOULD NOT HAVE FOUND THE DEFENDANT GUILTY OF ALL THE SEXUAL OFFENSES.

In a pro se brief, defendant argues:

PCR COUNSEL FAILED TO RAISE CLAIMS THAT WERE SET FORTH IN DEFENDANT'S ORIGINAL PETITION FOR POST-CONVICTION RELIEF IN VIOLATION OF R. 3:33-6(d).

Specifically, defendant pro se argues that his rights under the Vienna Convention on Consular Relations were denied.

III.

We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J.391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id.at 421.

Defendant argues that his counsel was ineffective by failing to seek instructions regarding other crimes evidence after it was introduced. We disagree. We acknowledge that, generally, it is preferable for a trial court to deliver an other crimes instruction after admission of such evidence, as well as in the closing instructions. As we stated in Angoy,

[I]n addition to its inclusion in the final jury charge, a prompt delivery of limiting instructions, either before, simultaneously with, or immediately after, the admission of other crimes evidence is preferable, and unless there is some compelling reason to do otherwise should be standard procedure followed by trial courts in all cases.

[Supra, 329 N.J. Super.at 89-90.]

See also Blakney, supra, 189 N.J.at 93 ("We note that the better practice is to give limiting instructions not only at the time that other-crimes evidence is presented, but also in the final jury charge."); State v. Baker, 400 N.J. Super. 28, 47 (App. Div. 2008) (citing Angoy), aff'd o.b., 198 N.J. 189 (2009); Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (2007) (Other Crimes Charge).

However, the failure to deliver an interim Other Crimes Charge especially when the final charge is impeccable is not necessarily plain error. "[I]f the final charge is 'accurate, clear and comprehensive,' we have concluded any delay, even if two weeks have elapsed between the introduction of the evidence and the final instruction, is not plain error." Baker, supra, 400 N.J. Super. at 47 (quoting Angoy, supra, 329 N.J. Super. at 89).

There are several reasons why we conclude that trial counsel was not ineffective by failing to insist upon interim instructions. The first three victims did not identify defendant as the person who committed the assaults.4 Thus, delivery of the Other Crimes Charge after the first three victims testified may have created the opposite impression that defense counsel presumably sought. The Model Charge includes the statement, "Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts when it is offered only to show that he/she has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses." Thus, the Model Charge could have reinforced the impression that defendant did commit the assaults of the first three testifying victims.

Also, defense counsel would have provoked the delivery of interim charges five times in the short span of two consecutive trial days in which the five victims testified. Rather than prevent the jury from concluding defendant had a propensity to commit crimes, the mere repetition of the charge may have led to the opposite result. Moreover, the theory of the defense was one of mistaken identification. Defendant conceded that the rapes occurred. Even if the jury concluded that one man committed all five assaults, defendant argued he was not the assailant, challenging the reliability of the DNA evidence.

Finally, the evidence of the four separate incidents was primarily presented because defendant was charged with crimes related to each. The court denied the motion to sever after balancing the potential prejudice to defendant and other factors, and we affirmed. Cepates I, supra, slip op. at 11-13. In analyzing the potential prejudice to defendant of a trial of multiple charges, the court concluded that the evidence of the four incidents that occurred in public would be admissible in separate trials as other crimes evidence under N.J.R.E. 404(b), applying the four-part test under State v. Cofield, 127 N.J. 328, 338 (1992). See State v. Chenique-Puey, 145 N.J. 334, 341 (1996).

Nonetheless, there is a meaningful distinction between 404(b) evidence presented solely for one of the purposes allowed under the Rules of Evidence including motive, opportunity, intent, preparation, and plan and evidence presented because the "other crime" is also charged. In the former, there would appear to be a greater risk that the jury would be uncertain as to the proper use of the evidence, and might use it as proof of propensity or disposition to act in conformity with the other acts. However, in the latter case, presumably, the jury would tend to consider the evidence for its obvious purpose as proof of one of the crimes charged. The model instruction on multiple charges as opposed to the Other Crimes Charge advises jurors that a "defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I will give it to you." Model Jury Charge (Criminal), "Multiple Charges" (2013). The judge delivered that charge twice in his final instructions, along with the Other Crimes Charge.

In any event, defendant has failed to establish a prima facie case that the failure to request interim instructions was prejudicial, so as to satisfy the second Strickland prong. As the trial court observed, the final jury instruction was delivered relatively soon after the other crimes evidence was admitted. Also, as the trial court observed, as did we on defendant's direct appeal, Cepates I, supra, slip op. at 16, the evidence against defendant was overwhelming.

Finally, we find no merit to defendant's argument that PCR counsel was ineffective in failing to highlight defendant's pro se argument regarding Article 36 of the Vienna Convention on Consular Relations (Convention).5 Article 36 of the Convention states, in pertinent part, that if a defendant so requests, "the competent authorities of the receiving State [in this case, New Jersey] shall, without delay, inform the consular post of the sending State [in this case, Honduras] if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner." Defendant argues that arresting authorities did not inform him of his right under the Convention to contact Honduran consular officials. Had they done so, he contends he would have been provided a Spanish-speaking defense attorney. However, he provides no competent evidence to support those contentions. His pro se petition simply stated, in conclusory form, that his rights under the Convention were denied.

Defendant also does not explain why his claim under the Convention could not have been brought on direct appeal. He therefore is barred from raising it now. R. 3:22-4 (stating that, subject to exceptions, "[a]ny ground for relief not raised in the proceedings resulting in the conviction . . . is barred from assertion in a proceeding under this rule"). The United States Supreme Court has held that "a State may apply its regular rules of procedural default to Article 36 claims." Sanchez-Llamas v. Oregon, 548 U.S. 331, 337, 126 S. Ct. 2669, 2674, 165 L. Ed. 2d 557, 571 (2006). We recognize that a defendant is not required to raise on direct appeal a claim of ineffective assistance of counsel. SeeR.3:22-4(a)(2) (stating that the bar does not apply where its enforcement would preclude claims of ineffective assistance of counsel that would result in fundamental injustice). However, defendant does not assert that it was trial counsel's professional duty to inform him of his rights under the Convention. Cf.Osagiede v. United States, 543 F.3d 399, 408-12 (7th Cir. 2008) (holding that norms of professional practice required a defense attorney to advise his client of Article 36 rights).

In any event, defendant has presented no basis to conclude that his asserted ignorance of his rights under the Convention would have caused him prejudice. See State v. Jang, 359 N.J. Super. 85, 88 (App. Div.) (stating that "absent a showing of prejudice, a failure to comply with provisions of the [Convention] will not result in a reversal of a conviction"), certif. denied, 177 N.J. 492 (2003). "Article 36 [of the Convention] does not guarantee defendants any assistance at all. The provision secures only a right of foreign nationals to have their consulate informed of their arrest or detention." Sanchez-Llamas, supra, 548 U.S. at 349, 126 S. Ct. at 2681, 165 L. Ed. 2d at 578.

"To establish prejudice, defendant must produce evidence that: 1) he did not know his right; 2) he would have availed himself of the right had he known of it; 3) there was a likelihood that contact with the consul would have resulted in assistance to him." Jang, supra, 359 N.J. Super. at 93 (internal quotation marks and citation omitted). There is no evidence in the record that even had he contacted consular officials, they could, or would, have provided him with assistance, and it would have made a difference. A defendant "must indicate how he proposes to show a realistic prospect of consular assistance and provide some credible indication of facts reasonably available to him to support his claim." Osagiede, supra, 543 F.3d at 413.

There is no support whatsoever that Honduran officials would have provided defendant with a Spanish-speaking attorney, as he contends. In any event, defendant has failed to establish prejudice, as he was provided with competent counsel and the assistance of interpreters. In Jang, supra, we rejected as vague and general, the defendant's allegations that had the defendant been informed of his rights under the Convention, he would have been provided a Korean-speaking attorney, and that attorney would have provided a significantly different level of representation. 359 N.J. Super. at 94. See also State v. Cevallos-Bermeo, 333 N.J. Super. 181, 187-88 (App. Div.), certif. denied, 165 N.J. 607 (2000). Defendant fares no better here.

1 As we previously noted, the State voluntarily dismissed several charges before the case went to the jury. Cepates I, supra, slip op. at 3 n.1. It did so in response to the judge's suggestion that the State simplify the charges, and not, apparently, as a result of a failure of proof.

2 Defendant also presented facts and argument to defeat a potential argument that the instant petition was untimely. It was filed March 2010, less than two months beyond the five-year period after sentencing in February 2005. The petition was defendant's second. The trial court dismissed without prejudice an initial petition on March 11, 2009, because an appeal was still pending. Although the State initially argued the petition was untimely, it abandoned that position in oral argument and the court considered the petition on the merits.

3 The court also noted that the jury acquitted defendant on the aggravated assault count, demonstrating that "the jury considered the evidence presented only as it applied to each separate charge pertaining to each victim." However, we note that as the acquittal occurred in the second trial involving the single victim, it does not reflect on the impact of other crimes evidence on the jury in the trial involving the multiple victims.

4 The last two victims' in-court identifications apparently came as a surprise to defense counsel, based on his opening statement.

5 Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77, 101, 596 U.N.T.S. 261, 292.