STATE OF NEW JERSEY v. ANTONIO SUAREZ-PEREZ

NOT FOR PUBLICATION WITHOUT THE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-0927-18

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANTONIO SUAREZ-PEREZ,
a/k/a/ ANTONIO D. SUAREZ,
ANTONIO D. PEREZ and
ANTONIO D. SUAREZPEREZ
MINGO,

     Defendant-Appellant.
____________________________

                   Submitted December 14, 2020 – Decided April 9, 2021

                   Before Judges Hoffman and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 09-07-
                   1405.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, on
                   the brief).
            Christopher J. Gramiccioni, Monmouth County
            Prosecutor, attorney for respondent (Mary R. Juliano,
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant appeals from the denial of his petition for post-conviction

relief. For the reasons set forth below, we affirm.

                                       I.

      We incorporate and summarize the relevant facts from our opinion on the

direct appeal. State v. Suarez-Perez, No. A-0384-12 (App. Div. December 1,

2015) (slip op. at 1-7). Co-defendants Figueras and Hearn, along with other

witnesses, testified at trial regarding events leading up to the murders of the two

victims, Wakefield and Fann, on the night of February 10-11, 2009.

      Figueras and Hearn were together at Figueras's home. Defendant joined

them and showed them a black gun he was carrying. He told them the gun held

ten bullets. Defendant asked Hearn to drive him to an apartment complex where

his brother lived on Locust Avenue in Red Bank. Hearn drove defendant and

Figueras in his dark blue Audi. At a parking lot outside the complex, defendant

exited the car and again showed them the gun. The three men bought and drank

beer, and defendant talked with his brother and other relatives.




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      Defendant next asked Hearn to drive him to a housing development. On

the way, however, defendant asked Hearn to slow down, and appeared to be

looking for someone. He then asked Hearn to drive to a nearby gas station,

where Wakefield's white Lexus was parked. At the gas station, Hearn saw

defendant speaking with Wakefield and Fann. When defendant returned to

Hearn's car, defendant seemed upset. Defendant, Hearn, and Figueras returned

to the parking lot on Locust Avenue. As soon as Hearn parked the Audi,

defendant got out, told them to wait, said he would be right back , and walked

out of sight.

      Shortly thereafter, at about 1:30 a.m., neighborhood residents heard

multiple gunshots and went to their windows. One eyewitness saw a man,

wearing dark clothes and a hood over his head, standing over and shooting a

victim lying face down on the ground. The man then ran up to a white car, and

there was another gunshot. A second eyewitness saw a hooded man standing in

the street firing, and then run around the corner. A third eyewitness saw a

hooded man wearing dark clothes running back down Locust Avenue. The

eyewitnesses heard up to ten gunshots.

      Defendant later told Figueras that he had been paid $30,000 to kill the two

men. He later told an inmate that he alone killed the two men. He described to


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the inmate how he approached the car from the passenger side, then shot the

passenger twice and the driver once. He shot the driver again as the driver tried

to flee the vehicle.

      The police arrived on the scene and found Wakefield lying dead in the

street. He was shot a total of eight times, including three times in the back of

the head. Bloodstains on the driver's door and street indicated Wakefield was

wounded in the white Lexus, had gotten out and fallen on the street. Evidence

showed he had been shot repeatedly on the street where he fell. The police found

Fann dead in the front passenger seat of the white Lexus. He had been shot

twice in the right side of the head. Both victims were shot at close range. Both

had cash and cocaine on their persons.

      After the first few gunshots, defendant's brother called from his apartment

window and asked if it was defendant. Hearn and Figueras testified that right

after they heard the last gunshot, defendant came hurrying toward them, red in

the face, out of breath, and looking over his shoulder. Defendant got back in the

Audi, repeatedly saying "Let's go!" or "Go!" As Hearn drove, defendant showed

Figueras he now had some crack cocaine. As they drove away, Figueras heard

defendant say, "damn, I just killed both of these mother f-----s." Defendant




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removed the clip from the gun and added, "damn, I emptied the clip on both of

those mother f-----s," and said the gun was jammed.

      Patrolman James DePonte quickly responded to reports of multiple

gunshots at 1:35 a.m. As he drove to the scene, he saw a dark blue or black

Audi traveling in the opposite direction one block from the scene. DePonte

shined his spotlight on the car, which contained three men. As the Audi drove

past, the man in the back seat turned around and looked back. Patrolman

DePonte arrived at the scene, found the two victims, and pursued the Audi. After

a pursuit at extreme speed, he stopped the Audi at an intersection. He and

another officer found Hearn in the driver's seat, Figueras in the front pa ssenger

seat, and defendant in the rear seat.       The officers arrested the three men.

Defendant was wearing a dark hooded sweatshirt, a dark coat, dark sneakers,

and blue jeans.

      In the Audi, the police discovered a ski mask which smelled of defendant's

cologne and bore his DNA. The police tested the three men's hands for gunshot

residue. Only defendant's hands tested positive for gunshot residue. Subsequent

testing found a very high number of gunshot residue particles on defendant's ski

mask, hooded sweatshirt, coat, and jeans.




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      Right before the Audi had been stopped, Figueras had seen defendant stick

his hand out of the open car window. Later that morning, a citizen found a 9

mm semi-automatic gun lying on the side of the road near where the Audi had

been stopped. The gun had a capacity of ten bullets. It was empty. Ten shell

casings and six testable bullets were recovered from near the shooting victims'

bodies. Admissible evidence linked the shell casings and the bullets to that gun.

      Defendant was indicted for the first-degree murders of Wakefield and

Fann. Co-defendant Figueras was similarly charged. Defendant, Figueras, and

Hearn were also charged with first-degree armed robbery and first-degree felony

murder. The three were charged with various weapons offenses as well. Finally,

defendant and Figueras were charged with evidence tampering, while Hearn and

Figueras were charged with obstruction and hindering. Hearn and Figueras pled

guilty to hindering, and they each testified against defendant at his murder trial.

Defendant presented no witnesses.

      After trial, the jury convicted defendant of the murders of Wakefield and

Fann, the firearm and handgun offenses, and tampering. The jury acquitted

defendant of armed robbery, and thus did not reach the felony murder counts.

The trial court sentenced defendant to consecutive life terms without parole for




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the two murders. The court imposed concurrent sentences on the weapons and

tampering convictions.

        Defendant raised five issues on appeal, two of which are relevant here.

The remaining issues were resolved during the direct appeal and not argued in

defendant's PCR application. First, defendant argued the State used the "truthful

testimony" condition of the co-defendants' plea bargains to bolster their

credibility, which defendant argued constituted impermissible vouching.

Second, defendant argued defendant's right to a fair trial was violated when a

State witness testified that the two cooperating co-defendants gave "truthful"

proffer statements.

        On December 1, 2015, we rejected each of defendant's arguments on direct

appeal and affirmed his conviction and sentence. The Supreme Court denied

defendant's petition for certification 1 on March 14, 2016.

                                       II.

        Defendant filed a petition for post-conviction relief.   The State filed

opposition. Defendant made two arguments before the PCR judge.

        Defendant first argued that trial counsel failed to object to the State

bolstering or vouching for Hearns and Figueras, the co-defendants who testified


1
    State v. Suarez-Perez,  224 N.J. 282 (2016).
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against the defendant as part of their plea agreement. Defendant also argued

trial counsel didn't object to the State's mention during openings and summations

of co-defendants' plea agreement. The PCR judge noted we disposed of the

same arguments on appeal by concluding Hearns' and Figueras's written plea

agreements were admissible as relevant to their interests in testifying at trial.

Suarez-Perez, slip op. at 13. He further noted we held on direct appeal it was

permissible for the State to reference contents of the plea agreements in the

State's openings and closings, where it did so accurately and in a manner faithful

to their respective contents. Suarez-Perez, slip op. at 15-16. The PCR judge

found no ineffective assistance of counsel where we held the plea agreements

admissible, and the State's references to the agreements not bolstering.

      Next, defendant argued trial counsel was ineffective for failing to call a

potential witness, Lawrence McLendon, to testify for the defense. In 2009,

McLendon gave a statement to authorities in which he said Figueras confessed

to shooting the victims. McLendon had a significant and lengthy criminal

history which included state and federal convictions for sexual assault and

robbery. Defendant's trial counsel obtained McLendon's statement, however,

she elected not to call McLendon at trial.       Rather, she elicited Figueras's

"confession" through a detective and Figueras himself.        Trial counsel also


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addressed McLendon's absence from trial in her closing, calling his potential

testimony "repetitive." The PCR judge concluded that her decision not to call

McLendon was reasonable trial strategy, not ineffective assistance of counsel.

      The PCR judge found neither argument demonstrated a prima facie claim

of post-conviction relief. State v. Preciose,  129 N.J. 451, 462 (1992). He found

no need for an evidentiary hearing on the record presented.

      On appeal, defendant reprises the arguments he made before the PCR

judge:

            This Matter Must Be Remanded for an Evidentiary
            Hearing Because Defendant Established a Prima Facie
            Case of Trial Counsel's Ineffectiveness for Failing to
            Object to the Prosecution's Vouching for and Bolstering
            the Co-Defendants' Testimony and for Failing to Have
            a Key Witness Testify.

                  A. Trial Counsel Failed to Object
                  to the Prosecution's Vouching for
                  and Bolstering the Co-Defendants'
                  Testimony.

                  B. Trial Counsel Failed to Have Lawrence
                  McLendon Testify.

                                    III.

      When petitioning for PCR, a defendant must establish he is entitled to

"PCR by a preponderance of the evidence." State v. O'Donnell,  435 N.J. Super.
 351, 370 (App. Div. 2014) (quoting Preciose,  129 N.J. at 459). We analyze

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ineffective assistance of counsel claims by using the two-prong test established

by the Supreme Court in Strickland v. Washington,  466 U.S. 668, 694 (1984).

See Preciose,  129 N.J. at 463; see also State v. Fritz,  105 N.J. 42, 58 (1987).

The first prong of the Strickland test requires a defendant to establish counsel's

performance was deficient. Preciose,  129 N.J. at 463. "The second, and far

more difficult, prong is whether there exists 'a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different.'" Id. at 463-64 (quoting Strickland,  466 U.S. at 694).

      There exists a strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment. Strickland,  466 U.S.  at 689. Further, because prejudice

is not presumed, defendant must demonstrate how specific errors by counsel

undermined the reliability of the proceeding. State v. Drisco,  355 N.J. Super
 283, 290 (App. Div. 2002) (citing U.S. v. Cronic,  466 U.S. 648, 659 (1984)).

                                     IV.

      Where a PCR court does not conduct an evidentiary hearing, we "conduct

a de novo review of both the factual findings and legal conclusions of the PCR

court." State v. Blake,  444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State

v Harris,  181 N.J. 391, 421 (2004)). The record shows the defendant has failed


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to overcome the "strong presumption that [trial] counsel rendered adequate

assistance," and that she "exercise[d] reasonable professional judgment."

Strickland,  466 U.S.  at 689.

      Defendant's first PCR argument, the State's use of the co-defendant's plea

agreements, closely tracks his unsuccessful direct appeal arguments. The PCR

judge properly rejected it, as the "bolstering" claims were resolved on direct

appeal and could not serve as a basis for a subsequent PCR application.

Defendant's second argument, ineffectiveness of counsel due to failure to call

McLendon, was also properly rejected by the PCR judge as reasonable trial

strategy. By not calling McLendon at trial, trial counsel avoided McLendon's

likely impeachment on the witness stand, given his damaging criminal history.

She placed the substance of McLendon's statement into evidence through other

witnesses. She provided jurors an explanation for her decision not to call

McLendon in her closing.          "[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable" in a claim for PCR based upon ineffective assistance of

counsel. State v. Cooper,  410 N.J. Super. 43, 57 (App. Div. 2009) (quoting

Strickland, at 690-91 (1984)).




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      After reviewing the record, for the reasons set forth above, as well as in

the PCR judge's thorough written opinion, we conclude defendant failed to meet

his burden to show ineffective assistance of trial counsel. Preciose,  129 N.J. at
 463. There is no basis for an evidentiary hearing on this record.

      Affirmed.




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