STATE OF NEW JERSEY v. NICHOLAS TEJEDA

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NOT FOR PUBLICATION WITHOUT THE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.

NICHOLAS TEJEDA, a/k/a WILSON

TEJEDA, NICHOLAS W. TEJEDA,

WILSON TEJADA, NICHOLAS TEJENDA,

THOMAS SANTOS,

Defendant-Appellant.

________________________________

October 8, 2014

 

Submitted September 30, 2014 Decided

Before Judges Reisner and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-01921.

Joseph E. Krakoka, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Nicholas Tejeda appeals from a December 14, 2012 order denying his petition for post-conviction relief (PCR). We affirm.

I

Facing a potential sentence of two consecutive life terms for shooting his ex-wife and her paramour, defendant pled guilty to two counts of first-degree murder, N.J.S.A. 2C:11-3a(1)(2), in exchange for a recommended aggregate sentence of forty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Consistent with the plea agreement, on October 12, 2007, he was sentenced to an aggregate NERA term of forty years, plus $26,675 in restitution to the victim's family. We affirmed the sentence on an Excessive Sentence Oral Argument calendar. State v. Tejeda, No. A-1388-07 (App. Div. Aug. 4, 2009), certif. denied, 200 N.J. 504 (2009).

On February 24, 2012, defendant filed a PCR petition, contending that his trial attorney was ineffective in failing to investigate the defenses of insanity, diminished capacity, or passion/provocation; failing to explain to defendant that the plea could result in his spending the rest of his life in prison; and failing to request a hearing to determine if defendant had the ability to pay the restitution.

In a certification in support of the petition, defendant attested that when he met with Dr. Daniel Greenfield, a defense psychiatric expert, an interpreter was not present "until the very end of the interview." Defendant asserted that he did not understand Dr. Greenfield's questions because he did not speak English. He claimed that, if he told Dr. Greenfield that he "had no recollection of the events," it was because he misunderstood what the doctor was asking him. Defendant stated, in conclusory fashion, that he "believe[d]" he was "innocent of the charges" to which he pled guilty because he "believe[d]" that the evidence would support "guilt of passion/provocation manslaughter and not of first degree murder." He asserted that, had his attorney explained to him the difference between murder and passion/provocation manslaughter, he would not have pled guilty but would have insisted on going to trial.

We briefly describe the PCR evidence. In his May 28, 2004 confession, defendant told the police that he and his wife1 had not been getting along; she had told him not to touch her, and he therefore had been sleeping in a walk-in closet for the past week, leaving her to sleep in the bedroom. He told the police that he suspected his wife was having an affair, because he had overheard an affectionate conversation between her and another man, whom he knew.

On the day of the killings, May 27, 2004, defendant borrowed a pistol from a friend and placed it in the pocket of his jacket, which he hung in the walk-in closet.2 After going out to run errands, defendant returned to the house, entered the bedroom and found his wife and her paramour naked. He left the bedroom, retrieved the gun from the closet, forced the wife and the paramour to kneel beside the bed facing each other, and shot each of them once in the head.

On June 7, 2006, Dr. Greenfield issued an expert report to defendant's trial attorney. Dr. Greenfield was retained to evaluate defendant with respect to possible defenses of insanity, diminished capacity, and intoxication, or a passion/provocation defense. His report recited that defendant told him he did not remember the relevant events surrounding the killings. Dr. Greenfield's report noted that a Spanish speaking interpreter was not present at the beginning of the interview, but "when [the interpreter] arrived, we reviewed all of these points again."

It is clear from the report that the interpreter was present when Dr. Greenfield asked defendant about the shootings. According to Dr. Greenfield, the interpreter read defendant's confession to him, and the doctor then asked defendant

if that helped him to remember what he had just heard. He told me that it did not. We continued this discussion, probing on my part for about 15 minutes, with Mr. Tejeda's maintaining his not remembering having said those words throughout. He specifically said that he did not remember giving the Statement, [or] the incident itself . . . .

Dr. Greenfield was unable to provide an opinion helpful to the defense.

In addition to the defense examination by Dr. Greenfield, the State had defendant examined by Dr. Elizabeth Hogan on March 20, 2007. Her report recited that defendant had previously varied in his story about whether or not he could remember the events surrounding the killings, sometimes claiming no memory of events. Dr. Hogan stated that during her examination, defendant was "able to give a coherent although limited account of the circumstances that led to his arrest." She opined that although defendant "was likely experiencing extreme emotional distress" at the time of the crime, he did not have the basis for a defense of diminished capacity and he was not legally insane.

At the plea hearing on August 27, 2007, the trial judge explained to defendant that the plea agreement called for a forty-year sentence, and that he would be "required to serve at least 34 years in State Prison" before becoming eligible for parole. Defendant stated that he understood. The prosecutor then clarified that at sentencing, the judge had discretion to sentence defendant to not less than thirty years. Defendant stated that he understood. Also at the plea hearing, defense counsel specifically stated that defendant agreed to pay $26,675 in restitution. Defendant stated that he had gone over the terms of the plea agreement with his attorney, understood the terms, and agreed to them.

At the sentencing hearing, defense counsel stated that even though defendant was not asserting a heat of passion or diminished capacity defense, the court should give defendant a thirty-year sentence because he "lost control" after seeing "the love of his life with another man in his bedroom." Noting that he would normally impose consecutive sentences for two murders, which at the minimum allowed by law would result in a sixty-year sentence, the trial judge nonetheless accepted the plea agreement and imposed two concurrent terms of forty years.

The PCR petition was heard before a second judge. After hearing oral argument on December 12, 2012, the PCR judge concluded that defendant had not presented a prima facie case of ineffective assistance of counsel, so as to entitle him to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 463 (1992). He found that defendant's attorney "conducted a full competent investigation of possible defenses," including diminished capacity and insanity. Neither Dr. Greenfield nor Dr. Hogan could support either defense. The judge also found that Dr. Greenfield reviewed the incident with defendant after the interpreter arrived, as noted in his report.

The PCR judge found that counsel was not ineffective in failing to advise defendant that he had a viable defense of passion/provocation manslaughter. To the contrary, he found that the elements "were not present" and that the evidence

indicates that these homicides were premeditated and I find that this defendant would have failed to meet the requirements of passion provocation.

This defendant suspected for approximately one month that there was a relationship with another man and his ex-wife and had overheard phone conversations days before indicating that there was a relationship between [the wife] and [the paramour], the most telling [detail being] that this defendant procured the gun used in the crime one week prior to committing the act, clearly premeditated.

. . . [T]he fact that this was done execution style kneeling at the bed does not make it where we have to consider this as a passion provocation situation.

II

On this appeal, defendant raises the following points for our consideration

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS BECAUSE THE TRIAL ATTORNEY (1) DID NOT CONDUCT A COMPREHENSIVE INVESTIGATION TO DETERMINE THE VIABILITY OF A PASSION/PROVOCATION DEFENSE; (2) PRESSURED THE DEFENDANT INTO PLEADING GUILTY WITHOUT FIRST OBTAINING A COMPLETE PSYCHIATRIC REPORT; AND (3) FAILED TO EXPLAIN TO THE DEFENDANT THE DEFENSE OF VOLUNTARY MANSLAUGHTER BASED UPON HEAT OF PASSION/PROVOCATION DEFENSE; AND HAD THE TRIAL ATTORNEY DONE SO THE DEFENDANT WOULD HAVE ELECTED TO PROCEED TO TRIAL, RATHER THAN ENTERING INTO A PLEA AGREEMENT.

POINT II

BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE, REQUIRING REMAND.

POINT III

THE PCR 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.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

In his pro se supplemental brief, defendant raises this point

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL WHEN COUNSEL FAILED TO ADVANCE AN ARGUMENT IN SUPPORT OF PETITIONER'S CLAIM THAT HE WAS NEVER GIVEN A HEARING TO DETERMINE IF HE COULD PAY RESTITUTION, AND FAILED TO INCORPORATE THE CLAIM BY REFERENCE SO THAT THE PCR COURT COULD CONSIDER IT.

Having reviewed the record, we cannot agree with any of defendant's contentions. Except as addressed herein, we conclude defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

To establish a right to relief, defendant must demonstrate that his attorney provided ineffective legal representation, and "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." State v. O'Donnell, 435 N.J. Super. 351, 369-70 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)); see State v. Gaitan, 209 N.J. 339, 351 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed 2d 361 (2013).

A defendant is not entitled to an evidentiary hearing on a PCR petition unless he presents legally competent evidence to support both prongs of the test. O'Donnell, supra, 435 N.J. Super. at 370; see also Preciose, supra, 129 N.J. at 463. Mere "bald assertions" are insufficient to create a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If the PCR court has not held "an evidentiary hearing, we may exercise de novo review over the factual inferences the [PCR] court has drawn from the documentary record." O'Donnell, supra, 435 N.J. Super. at 373.

In this case, we agree with the PCR judge that defendant failed to establish a prima facie case of ineffective assistance of counsel. Defendant argues that Dr. Greenfield was unable to conduct a complete mental health examination because the interpreter arrived late, and defense counsel should have asked Dr. Greenfield to conduct a further examination. However, he produced no evidence that an additional examination would have led Dr. Greenfield, or any other psychiatrist, to render an opinion favorable to the defense. Moreover, it is abundantly clear from Dr. Greenfield's report that the doctor reviewed all of the essential facts with defendant in detail, with the interpreter present, and defendant insisted he could not remember what happened during the killings.3

We also agree with the PCR judge that the available evidence did not support a viable passion/provocation defense. Consequently, competent defense counsel would not have advised her client that such a defense had a reasonable chance of success, or that he should go to trial and risk two consecutive life terms instead of one forty-year sentence.

A criminal homicide which would otherwise qualify as murder constitutes manslaughter where the killing "is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4b(2).

Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated.

[State v. Mauricio, 117 N.J. 402, 411 (1990) (citation omitted).]

"The amount of time that passes between the provocation alleged and the killing, and the precise sequence of events, are thus pivotal factors in this determination." State v. Galicia, 210 N.J. 364, 380 (2012). Because the first two elements are objective, the court should decide whether they are sufficient. "[I]f they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury." Ibid. (citing State v. Robinson, 136 N.J 476, 491 (1994)). If the elements are present, it is the State's burden to disprove passion/provocation. Galicia, supra, 210 N.J. at 374.

In this case, as in Galicia, a spurned lover killed his significant other. In that case, the two parties exchanged blows before defendant got into his car, drove it at the victim, hit him with the car, and drove several blocks with the victim on the car's hood. The Court found that at the time of the offense, there was inadequate provocation, as well as a lack of evidence of "an absence of adequate cooling-off time." Id. at 385.

Here, we agree with the PCR judge that defendant's own statement defeated the objective elements of passion/provocation manslaughter. There was no sudden revelation of unfaithfulness. Defendant had believed for some time that his ex-wife was seeing another man. He even overheard them talking on the telephone. He bought a gun and hid it in the walk-in closet he used as his bedroom. When he found his ex-wife and her paramour in the bedroom, naked, he did not have an immediate violent reaction. He walked out of the room. He could have kept walking. Instead, he went into the closet, retrieved the gun, and returned to the bedroom. Defendant then forced the two victims to kneel beside the bed facing each other, before he shot each of them with one bullet to the head.

We conclude that, at the time defendant carried out his ritualistic execution of the victims, there was no adequate provocation and he had had time to cool off. Even if the ex-wife cursed at defendant when he returned to the bedroom with the gun, words are not adequate provocation under the statute. See State v. Weaver, ___ N.J. ___, ___ n.5 (2014); State v. Mauricio, 117 N.J. 402, 413-14 (1990). We also conclude that, if defendant had gone to trial and the court had charged a jury with passion/provocation, the odds were slim to none that any rational jury would have accepted that defense. Consequently, there was no basis to conclude that defendant's trial counsel rendered ineffective assistance in failing to advise defendant that he had a viable passion/provocation defense.

As previously noted, had he gone to trial and been convicted of murder, defendant was facing two consecutive life terms. His counsel was able to negotiate a plea agreement which exposed him to one aggregate NERA term of between thirty and forty years. We find no basis to conclude that defense counsel was ineffective. Nor, in light of the evidence against him, would it have been rational for defendant to refuse a guilty plea and insist on going to trial. See Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

Addressing defendant's pro se brief, the State agrees that at the conclusion of his prison term, defendant would be entitled to a hearing on his ability to pay the restitution. See N.J.S.A. 2C:44-2. No other relief is warranted as to that issue.

Affirmed.

1 Defendant and the victim had been married and then divorced. However, they later reconciled and began living together again.

2 During the plea hearing, defendant corrected this statement by admitting under oath that he actually obtained the gun a week before the shootings.

3 Dr. Hogan's report confirmed that defendant had a pattern of sometimes denying any memory of the relevant events, and sometimes admitting to some memory of what happened.