STATE OF NEW JERSEY v. GERARDO GOMEZ

 

(NOTE: The status of this decision is Published.)

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0788-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GERARDO GOMEZ, a/k/a
KNUCKLES

     Defendant-Appellant.
______________________________

                    Submitted November 19, 2019 – Decided December 10, 2019

                    Before Judges Fisher and Accurso.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 08-09-2688.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew P. Slowinski, Designated Counsel,
                    on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant was convicted in 2012 of murder, armed robbery, conspiracy

to commit murder, attempted murder, and other offenses for his participation –

along with five others – in the events on a Newark playground on the evening

of August 4, 2007, that left three dead and only one survivor. Defendant was

sentenced to an aggregate prison term of 195 years. The evidence on which he

was convicted was briefly outlined in our opinion disposing of defendant's direct

appeal, State v. Gomez, No. A-3093-13 (App. Div. Feb. 1, 2016), 1 as well as

other unpublished opinions disposing of the appeals of co-defendants, and need

not be repeated here.

      The judge who presided over the lengthy trial also ruled on defendant's

post-conviction relief (PCR) petition. After conducting an evidentiary hearing

at which only defendant's trial attorney testified, Judge Michael L. Ravin

rendered a thorough and well-reasoned written decision that denied defendant's

request for post-conviction relief in all respects.


1
  In his direct appeal, defendant complained of the admission of N.J.R.E. 404(b)
evidence and evidence that the surviving victim was sexually assaulted. He also
complained he was denied the effective assistance of counsel because of the
admission of the sexual assault evidence. Defendant also argued the sentence
was excessive – but without asserting Miller v. Alabama,  561 U.S. 460 (2012)
– even though defendant was fifteen years old at the time of his crimes. He
lastly argued in the direct appeal that the judge misapplied State v. Yarbough,
 100 N.J. 627 (1985), in imposing consecutive prison terms. We rejected all
these arguments.
                                                                         A-0788-17T4
                                         2
      Defendant appeals the denial of his PCR petition, arguing he was denied

the effective assistance of counsel guaranteed by the Sixth Amendment because

his trial attorney: (1) asserted in his opening statement that defendant would

testify but later did not call defendant to testify without explanation; (2) failed

to adequately advise defendant about the decision not to testify; (3) failed to

adequately advise defendant about a plea offer; (4) failed to cross-examine the

surviving victim; (5) failed to adequately cross-examine co-defendant

Baskerville, who implicated defendant; and (6) failed to request a jury

instruction on the defense of duress. He also argues that appellate counsel was

ineffective in: (7) failing to argue prosecutorial misconduct in the direct appeal.

Defendant's last point in his appeal brief appears to only observe – without

seeking relief from us – that: (8) he has yet to argue his aggregate sentence

violates Miller or State v. Zuber,  227 N.J. 422 (2017). 2




2
   As to this eighth point, defendant argues that the constitutionality of his
sentence in light of Miller and Zuber "require[s] an in-depth examination of his
circumstances both before and after the date of the offenses in this case," that
this argument may be raised at any time because it challenges the legality of the
sentence, and that the PCR judge stated he would address such an application
on the merits once it was brought. Because defendant seeks nothing from this
court regarding this eighth point, we express no view on the accuracy of what
defendant asserts.
                                                                           A-0788-17T4
                                        3
      After close examination of the record in light of the issues presented, we

find insufficient merit in defendant's first seven arguments to warrant further

discussion in a written opinion, R. 2:11-3(e)(2), and affirm the order denying

the PCR petition substantially for the reasons expressed by Judge Ravin in his

thorough and well-reasoned written opinion.      We offer only the following

additional comments on defendant's first, fourth, fifth and sixth arguments.

      To understand why defendant's arguments on these four points are without

merit, we should consider defendant's trial strategy, which was to acknowledge

defendant's presence in the Mount Vernon Elementary School playground when

the murders and other crimes occurred but to also persuade the jury that

defendant was only a bystander, not a participant.       This position was not

jeopardized by the surviving victim's testimony, because she was unable to say

whether defendant was present or was a participant. Baskerville's involvement

at defendant's trial was of concern because he implicated defendant, but the

defense strategy was to discredit him because his testimony was motivated by

revenge. Baskerville initially gave a statement to police that defendant was a

mere bystander, but he changed his tune when police told him he and others

were arrested because of a statement defendant gave to the police. Baskerville

sent defendant a letter vowing revenge and claiming he would lie or do whatever


                                                                         A-0788-17T4
                                       4
it would take to get back at defendant. In bolstering the position that defendant

was only a bystander, the defense's goal was to shake Baskerville's credibility,

chiefly through use of this letter.

      So, defendant's first argument in this appeal should be understood in light

of the defense strategy. In support of that argument, defendant alludes to his

attorney's statement in his opening, in which he told the jury that:

             You're going to hear Gerardo. He lives there in the
             projects across from the Mount Vernon School . . . . He
             lives in a household with his baby brother and baby
             sister . . . . You'll hear when he was even younger, 14,
             in the woods not far from that schoolyard, he got to
             stand in a circle while adults beat him. They beat him.
             They beat him.

Defendant argued in the trial court that this approach was "inconsistent, illogical

and ineffective trial strategy" in light of the fact that he never testified. But, as

the judge found, and we agree, the advice counsel later gave – that defendant

not testify – was sound because to put defendant on the stand would have

"opened him up to cross-examination by an experienced [a]ssistant [p]rosecutor

and risked weakening his claim that he was a bystander." In some ways – even

though the representation that defendant would testify was not kept – defense

counsel was able as the judge found, through the statement now criticized, to

"humanize" defendant for the jury. Although the defense was put in an awkward


                                                                             A-0788-17T4
                                         5
position of going back on its representation that defendant would testify, we

agree with the judge that this circumstance could not have had a prejudicial

impact on the defense.

      Defendant's fourth argument – that his attorney failed to ask any question

of the surviving victim on cross-examination – is, again, best understood in light

of the defense strategy of showing defendant to be only a bystander. Viewed

out of context, it may sound like a terrible mistake for an attorney to decline to

cross-examine the crime victim. But, putting the issue in context, the attorney

was making the choice of either cross-examining a sympathetic witness, who

had not been able to say that defendant was a participant, at the risk of offending

the jury, or leaving well enough alone because the victim's testimony did not

implicate defendant.

      Defendant's trial attorney testified at the PCR hearing that he had attended

the trials of other co-defendants and was able to observe the victim during cross-

examination, so he did not make this choice blindfolded. The victim was,

according to the attorney, "disabled physically, mentally and emotionally " and

was "the most sympathetic surviving victim" he had seen in his decades of

practicing law in this arena. In addition, as the attorney explained:




                                                                           A-0788-17T4
                                        6
[the victim] was not a reliable relator, her memory was
not good. And as she didn't identify my client, I
thought it best to do the humane thing.

      ....

      I guess I could have spent a great deal of time
with [the victim] to try and cross[-]examine her on
collateral matters, play numbers games with her about
how many people she could see really when her face
was down in the ground or after she was shot.

       [I] [c]ould have asked her about whether she'd
been drinking or smoking with her friends. . . . But I
didn't want to squander for a moment any credit that I
would have to be able to stand up at the end of the case
and persuade the jury to listen to me and to follow me.

      There was nothing to be gained in my opinion by
beating up [the] poor [victim] any further than she
already had been beat up.

      . . . I had consulted with trial lawyers I've come
to know through the years here in Essex County, people
whose opinions I respect, and I think we were
unanimous in the . . . conclusion that we should let her
be.

      . . . There was nothing to be gained in my
professional opinion by cross[-]examining a witness
who doesn't identify my client, who was no longer able
to recall and relate, recollect details in a way that did
much damage to . . . our defense.

     . . . [I]t was hard to forget the way she presented.
A grown woman, more child-like than adult, so
sympathetic, had been through so much and lost so


                                                            A-0788-17T4
                           7
            much, that it was again, it was not an easy decision to
            make, sir. But one that I made after a great forethought.

Based on this testimony he found credible, Judge Ravin concluded that the

attorney's decision not to cross-examine the surviving victim was reasonable.

      The fifth argument concerns the effectiveness of the attorney's cross-

examination of Baskerville. Again, the attorney's approach was the product of

considerable thought and carried out in a manner consistent with the attorney's

sound strategy, which meant to emphasize Baskerville's initial statement that

defendant was a bystander and to discredit all that followed because of

Baskerville's desire to seek revenge. The attorney explained his strategy in his

PCR testimony by pointing out that once Baskerville:

            was informed that he was arrested because [defendant]
            had told on him[,] [he] posted a letter to [defendant] and
            swore everlasting revenge, that he would do whatever
            he could to get him. And we were in a very unusual
            and fortunate position to have that proof that [the]
            witness not only was going to lie, but promised that he
            was going to lie, that he was going to do anything he
            could. And if I recall, the letter was blown up as a
            demonstrative exhibit. And that promise that he would
            lie and do anything necessary went to his bias.

That bias, "coupled with the fact that [Baskerville] didn't want to spend the rest

of his life in State Prison was fertile ground to argue [to the jury] that . . .

Baskerville shouldn't be believed in the least[.]"


                                                                          A-0788-17T4
                                        8
      As Judge Ravin observed in his written opinion, there was no deficiency

in the attorney's strategy or his cross-examination of Baskerville. Indeed, as the

judge observed, the attorney's approach "was successful at least with regard to

[Baskerville's] testimony that [defendant] held a gun to [the surviving victim's]

head, pulled the trigger and the gun misfired" because defendant "was found not

guilty of the weapons charges."

      For these and the other reasons recounted in the judge's comprehensive

opinion, we reject defendant's fifth argument.

      As for defendant's sixth and last argument we will further discuss – that

his trial attorney should have sought a jury instruction on the defense of duress

– we again observe that such an approach would contradict the defense's position

that defendant was merely a bystander. To argue duress would essentially

suggest to the jury that defendant "engaged in" these heinous offenses "because

he was coerced to do so by the use of, or a threat to use, unlawful force against

his person or the person of another" and a reasonable person could not resist.

 N.J.S.A. 2C:2-9(a).     In introducing evidence to support this contention,

defendant would have been required to show that he "actually . . . believe[d] in

and [was] frightened by the likelihood of the threatened harm[.]" State v. B.H.,

 183 N.J. 171, 192 (2005). He would, in essence, be acknowledging his active


                                                                          A-0788-17T4
                                        9
participation and then be put in the position of asking the jury to excuse that

participation because he acted out of fear. This would, as the trial attorney

testified, undercut or "dilute" the defense that he was a mere bystander.

      Judge Ravin found the attorney's explanations credible and his approach

reasonably sound in not seeking instructions on the defense of duress. We agree.

With the benefit of hindsight, defendant argues that the attorney should have

pursued a duress defense.     There is no reason to believe that would have

generated a different result. But it seems clear that the better course was that

taken. There was no way in which both strategies could be pursued at the same

time. The attorney could not attempt to persuade the jury that defendant was a

bystander as these crimes occurred while at the same time attempt to persuade

the jury that he participated but under duress. The choice that was made

constituted a reasonably sound strategy that courts should not second-guess. See

State v. Chew,  179 N.J. 186, 206-13 (2004).

      For these reasons, as well as for the reasons provided by Judge Ravin in

his written decision, we reject all defendant's ineffectiveness arguments.

      Affirmed.




                                                                            A-0788-17T4
                                      10