SUAREZ v. BARTKOWSKI et al
Filing
11
OPINION. Signed by Judge Faith S. Hochberg on 12/20/2012. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MIGUEL A. SUAREZ,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.
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Civil Action No. 10-6209 (FSH)
OPINION
APPEARANCES:
Petitioner pro se
Miguel A. Suarez
New Jersey State Prison
Trenton, NJ 08625
Counsel for Respondents
Catherine Antoine Foddai
Bergen Co. Prosec. Office
Hackensack, NJ 07601
HOCHBERG, District Judge
Petitioner Miguel A. Suarez, a prisoner currently confined
at New Jersey State Prison in Trenton, New Jersey, has submitted
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254.
The respondents are Administrator Greg Bartkowski and
the Attorney General of New Jersey.
For the reasons stated herein, the Petition will be denied.
I.
A.
BACKGROUND
Factual Background
The relevant facts are set forth in the opinion of the
Superior Court of New Jersey, Appellate Division.1
According to the State’s proofs at trial, on
October 23, 1997, the blood-covered bodies of [Rajesh]
Kalsaria, [Ajit] Hira, and [Bhushan] Raval were
discovered inside Kalsaria’s home at 71 Chestnut Street
in Bogota. Hira and Kalsaria had been shot in the head
at close range while they were lying face down on the
floor, bound by duct tape. Raval had been shot in the
face, likely while kneeling, and then stabbed twentysix times in the neck, chest and abdomen before dying
from his wounds. Over $60,000 in diamonds, gold
jewelry and cash had been taken from the house, and
Hira’s Toyota Avalon was missing from Kalsaria’s
driveway.
Investigation at the scene uncovered pieces of a
rubber silencer, as well as a knife covered with blood,
later confirmed to be that of the victim Raval. Police
also recovered several nine-millimeter bullets and a
number of spent shell casings. It was subsequently
determined that all of the bullets and casings had been
discharged from the same weapon, which could have been
a MAC 11 automatic firearm.
The State’s investigation disclosed that Dimpy
Patel, a wealthy entrepreneur in his thirties, first
met Darwin Godoy, a twenty-year old Secaucus student
who had hoped to secure employment with Patel through
Patel’s cousin, sometime in August 1997. Shortly
thereafter, Patel requested that in return for $10,000,
Godoy find a hit man who would be willing to do a job
for him. Godoy had been acquainted with defendant
1
Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.”
2
Suarez, with whom he had been selling illegal cloned
cell phones. Godoy knew Suarez to be a violent person
who had bragged that he enjoyed killing people. Godoy
arranged a meeting between Suarez and Patel, which he
also attended.
During that meeting, Patel told Suarez that he
wanted to hire him to kill a diamond merchant and that
if he agreed, Suarez could keep any jewelry and cash he
found inside the diamond merchant’s home, estimated by
Patel to be worth $200,000. Neither the identity nor
address of the diamond merchant was disclosed by Patel
at that time. After reaching an agreement, Patel gave
$1,000 to Godoy for he and Suarez to purchase a firearm
with a silencer. Thereafter, Suarez, co-defendant
Morales, who was a long-time friend of Suarez, Godoy,
and another man, Eddie Nieves, drove into New York City
where Godoy and Suarez purchased a MAC 11 automatic
firearm with a silencer from someone named “Mike,” to
whom they were introduced by Nieves.
Two days before the murders, Patel telephoned
Godoy and provided the address of Kalsaria, the diamond
merchant, which was 71 Chestnut Street, Bogota. The
next day, Godoy and Suarez drove by the house. The
following day, October 23, Godoy met Suarez, who was
accompanied by Morales, [fn1] and they drove in
separate vehicles to Bogota - Godoy in his Subaru, and
Suarez and Morales in Suarez’s Honda. After parking
his vehicle, Godoy entered Suarez’s vehicle and they
drove to the area of 71 Chestnut Street.
[fn1] According to Godoy, until he saw Morales in
Suarez’s car, he had not known that Morales was
going to be involved.
Suarez showed Godoy a light blue bullet-proof vest
he intended to wear while carrying out the job, as well
as the MAC 11 and silencer. Suarez also advised that
he had brought along a nine-millimeter handgun and some
duct tape which he planned to place over the victim’s
mouth, at which time Morales drew his hand across his
mouth to pantomime what was going to occur. Suarez
instructed Godoy to act as a lookout while he and
Morales entered the residence and completed the hit.
Suarez and Morales exited the vehicle, with Suarez
carrying the firearm.
3
Godoy then returned to his car, drove by 71
Chestnut Street, circled back and parked a short
distance away. From where he remained inside the
parked vehicle, Godoy spotted Suarez and Morales
walking along Chestnut Street towards the diamond
merchant’s home. Moments later, though, Godoy saw the
pair walking back towards their car. Thereafter,
Suarez called Godoy on his cell phone and advised that
there were three men inside the house and that he did
not know what to do. However, after a pause, Suarez
said, “Fuck it. I’m going to do it.”
Immediately thereafter, a police car operated by
Officer James Sepp of the Bogota Police Department
pulled alongside Godoy’s vehicle to investigate why
Godoy was parked there. Godoy told Officer Sepp he had
been sent by his brother Carlos, the owner of J&J
Maintenance in North Bergen, to estimate a garage for
an upcoming construction project. During the
conversation with Officer Sepp, Godoy’s cell phone rang
approximately five times, with Godoy abruptly
terminating the calls. After some additional
questioning, Godoy admitted to Officer Sepp that the
three cell phones in his possession might be cloned
phones. Officer Sepp seized the phones, issued two
summonses to Godoy for various traffic violations, and
let him go. Godoy then left the area, purchased a
phone card and called Suarez, who informed Godoy that
he had “whacked him” and had stolen various jewelry and
diamonds from the home. Later, Godoy reported the
information to Patel, who told Godoy that Suarez had
dropped off some jewelry and diamonds and had left for
Puerto Rico.
After the murders were discovered, Officer Sepp
recalled the incident with Godoy, who had been present
near the murder scene at or about the estimated time of
the three murders. After being located and questioned
during the police investigation, Godoy confessed to his
involvement in the murders, implicating Suarez, Morales
and Patel.
Based upon Godoy’s statement, officers were
dispatched to locate and apprehend Patel, Suarez and
Morales. While police searched Morales’ home shortly
after his arrest at 3:00 a.m. on October 24, 1997, the
phone rang and a man later identified as Suarez left a
4
message for Morales urging him to call back because
there was an emergency.
Although police at first were unable to locate
Suarez, they searched his Newark home and found a light
blue bullet-proof vest hidden under a mattress. Later,
when Sergeant Richard Barbato was speaking to Suarez’s
girlfriend, Betsy Tufino, at her apartment, Suarez
called and Tufino handed the phone to Sergeant Barbato.
The officer identified himself and told Suarez that he
was investigating a triple homicide in Bogota which had
taken place the day before. After denying any
knowledge, Suarez angrily responded that the police
would never find him and that he was not going to turn
himself in. He then hung up. However, later that same
day, Suarez did surrender to police at his attorney’s
office.
According to Tufino, who testified at trial, in
early October 1997, she complained to Suarez about the
frequent phone calls he was receiving from Godoy, whom
she called by his nickname “Giovanni.” Tufino was
aware that Giovanni wanted Suarez to rob and kill an
Indian man in return for $20,000 and some diamonds.
Although she begged Suarez not to do it, Suarez would
not respond. A few days later she overheard Suarez
talking on the phone with Giovanni and again heard
Giovanni encouraging Suarez to “do it.” She also
claimed that at some point prior to October 23, 1997,
she overheard Morales tell his girlfriend on the
telephone that he was going to rob and kill an Indian
man. [fn2]
[fn2] Tufino admitted that in her first two
statements to the police, she never mentioned the
frequent phone calls from Giovanni or the intended
plot to rob and murder an Indian man. She also
acknowledged giving a videotaped statement to a
defense investigator where she claimed that, in
her third statement to police, she had merely
repeated what she had read in the newspaper about
the case, but explained Suarez’s father had asked
her to change her statement and that it was not
the truth.
Patel was arrested at 8:00 a.m. on October 24,
1997 as he was driving away from his Gloucester
Township home. A search of his car uncovered a bag
5
containing a .45 caliber gun, several jewelry boxes
containing assorted jewelry, Indian currency, and
several clear gemstones. During a subsequent search of
Patel’s home, police found a piece of paper on which
the name “Rajesh Kalsaria” had been written, along with
Kalsaria’s phone number, address and the notation
“brick house.” Police also found a Casio organizer,
and a second piece of paper containing the name “Angel”
(Suarez’s nickname) and several telephone numbers later
identified as Suarez’s cell phone and pager numbers.
Police also discovered Patel’s address book, which had
Godoy’s phone information, another piece of paper with
Godoy’s number, and a business card for J&J
Maintenance, Inc.
Hira’s Toyota, which someone had tried
unsuccessfully to burn, was ultimately located several
blocks away from Suarez’s home in Newark. Fibers
gathered from Suarez’s Honda Accord were subsequently
determined to match fibers found on the duct tape
removed from the murdered men.
Telephone records of the four conspirators were
obtained and confirmed that between October 1 and 24,
1997, there were numerous calls between Godoy, Suarez
and Patel. Godoy and Suarez had been on the phone for
forty-one minutes just before Officer Sepp approached
Godoy’s parked Subaru on the day of the murders, and
Suarez called Godoy back five minutes later while Godoy
was being interviewed by police. Suarez also called
Godoy three more times in rapid succession. According
to Kalsaria’s caller i.d., Suarez had called the
Kalsaria home at 12:07 p.m. in an apparent attempt to
ascertain who was home.
There was finally the testimony of George Rivera
who met Suarez in December 1997 when they were cell
mates for two weeks in the Bergen County Jail. Rivera
renewed the acquaintance, and also met Morales, when he
was reincarcerated at the jail for several weeks in
February 1998, and then resumed his friendship with
both men when he returned to the jail again in March
1999. Rivera maintained that, during his third period
of incarceration, Suarez revealed to him the details of
the murder plot which had landed him and Morales in
jail. Rivera recalled that Morales was present as
Suarez recounted the story, but that he simply nodded
without making any comments.
6
According to Rivera, Suarez claimed that Godoy had
introduced him to Patel, who said he was an FBI agent
and who offered to pay him $50,000 to kill someone who
had swindled some friends of his. The deal also
included Suarez receiving all the diamonds and money in
the house. After agreeing to do the job, Suarez
obtained two nine-millimeter handguns and a MAC 11 with
a silencer with the help of one “Eddie.” Suarez went
to the Bronx to obtain the MAC 11 for which he handed
over $1,500 in cash, plus a video game system. Suarez
asked Morales to accompany him when he went to do the
job and agreed to pay him for his assistance.
Suarez told Rivera that, on the day of the
murders, he and Morales met up with Godoy and the trio
drove to Bogota in two cars. Suarez was wearing a
bullet-proof vest, and had stored the MAC 11, silencer
and duct tape in a duffle bag. He and Morales were
also each carrying a nine-millimeter handgun.
After Godoy took up his position as a look-out,
Suarez and Morales approached the house and began to
bluff their way in using a brochure, but abandoned the
plan after noticing that there were two other men in
the house. However, after leaving and calling Godoy,
Suarez decided to go back and kill everyone in the
house.
Once Suarez and Morales had forced their way into
the house, and put on the rubber gloves they had
brought with them, Suarez ordered Morales to tie the
three men up on the floor with duct tape while he
assembled the MAC 11. Suarez then sent Morales
upstairs to look for the diamonds and cash, but when he
failed at this task, Suarez himself searched and
located the cache. When Suarez came back downstairs,
he noticed that the three victims were speaking among
themselves in a foreign language and so he ordered
Morales to gag them with the duct tape. After some
more searching, Suarez shot the homeowner, and then the
other two men, with the MAC 11. When it became clear
that the third man was not dead, Suarez directed
Morales to get him a knife. Suarez then proceeded to
stab the third man repeatedly in the chest.
After exiting the house, Suarez and Morales stole
the Toyota Avalon which was sitting in the driveway and
drove to Suarez’s Honda, which Morales subsequently
7
drove back to Newark. Suarez drove the Toyota to
Newark and gave it to some neighborhood friends to
burn. He hid the bullet-proof vest under his brother’s
mattress and the guns in his father’s garage. Later
that day, Suarez met with Patel and handed over the
diamonds and other jewelry he had taken from the house.
Upon learning that the police were after him, Suarez
asked his father to get rid of the guns.
In return for Rivera’s testimony, the prosecutor
agreed to recommend that he receive a seven-year prison
term, with a three-year stipulation, on all of his
pending New Jersey charges. However, Rivera had
multiple pending robbery cases in Pennsylvania and
Connecticut which were not covered by this deal.
Rivera conceded that, in his original statement to the
prosecutor, he never said that Morales was present and
nodding his head while Suarez recounted the details of
the murder plot.
Godoy’s statement, the physical and documentary
evidence including telephone records, and the testimony
of Nieves, Suarez’s girlfriend Betsy Tufino, and
Suarez’s cell mate George Rivera, all constituted
overwhelming evidence of defendants’ guilt.
(Answer, Ex. 3, Opinion of Superior Court of New Jersey,
Appellate Division, at 5-15 (May 21, 2004).)
B.
Procedural History
Following a jury trial, Petitioner was convicted of
(1) second-degree conspiracy to commit armed robbery, N.J.S.A.
2C:15-1 and 2C:5-2 (count two); (2) second-degree conspiracy to
commit murder, N.J.S.A. 2C:11-3 and 2C:5-2 (count three);
(3) third-degree unlawful possession of an assault firearm,
N.J.S.A. 2C:39-5(f) (count four); (4) fourth-degree unlawful
possession of a firearm silencer, N.J.S.A. 2C:39-3(c) (count
five); (5) third-degree possession of a handgun without a permit,
8
N.J.S.A. 2C:58-4 (count six); (6) second-degree unlawful
possession of a weapon with the purpose to use it unlawfully,
N.J.S.A. 2C:39-4(a) (count seven); (7) first-degree robbery,
N.J.S.A. 2C:15-1 (count eight); (8) three counts of first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts twelve through
fourteen); and (9) three counts of felony murder, N.J.S.A.
2C:11-3(a)(3) (counts fifteen, sixteen, and seventeen).
After merging various counts, the court sentenced Petitioner
to three consecutive terms of life imprisonment, each with a
30-year parole disqualifier, on counts twelve, thirteen, and
fourteen.
The court also imposed a concurrent 20-year term of
imprisonment, with ten years of parole ineligibility, on count
eight (robbery); a concurrent 18-month term of imprisonment on
count five (unlawful possession of a firearm silencer); and two
concurrent five-year terms of imprisonment on counts six
(possession of a firearm without a permit) and four (unlawful
possession of a firearm).
Petitioner’s aggregate sentence was,
thus, three life terms with a ninety-year parole ineligibility
period.
On direct appeal, the Superior Court of New Jersey,
Appellate Division, affirmed the convictions, but remanded for
sentence modification, agreeing in part with Petitioner’s
challenge to the application of New Jersey’s No Early Release
Act, N.J.S.A. 2C:43-7.2.
(Answer, Ex. 3.)
9
The Supreme Court of
New Jersey denied certification on September 23, 2004.
State v.
Suarez, 181 N.J. 547 (2004).
While Petitioner’s direct appeal was pending, he filed a
motion for new trial on the basis of newly-discovered evidence.2
On October 25, 2005, the trial court denied the motion, finding
the newly-discovered evidence cumulative and not material, and
unlikely to change the jury verdict.
The Appellate Division
affirmed, State v. Suarez, 2009 WL 249092 (N.J. Super. App. Div.
Feb. 4, 2009), and, on April 23, 2009, the Supreme Court of New
Jersey denied certification, State v. Suarez, 199 N.J. 132
(2009).
In November 2005, Petitioner filed a petition for postconviction relief, which the trial court denied on October 26,
2007.
The Appellate Division affirmed the denial of relief.
State v. Suarez, 2010 WL 2010930 (N.J. Super. App. Div. May 18,
2010).
On October 7, 2010, the Supreme Court of New Jersey
denied certification.
State v. Suarez, 204 N.J. 39 (2010).
This
Petition timely followed.
2
After Petitioner’s trial, Godoy successfully sought to
vacate his plea bargain and was tried, at which time he recanted
his earlier testimony about being paid by Patel to arrange the
murder and about receiving $10,000 from Patel for being a
lookout. In addition, at Patel’s separate trial, Patel testified
that another individual, also named “Angel,” and not Petitioner,
gave him a bag with jewelry immediately after the murders. The
foregoing testimony constituted the “newly-discovered evidence.”
10
Here, Petitioner asserts the following grounds for relief:
(a) prosecutorial misconduct,3 (b) the trial court improperly
admitted Petitioner’s telephonic statements to an investigator,
made before Petitioner was advised of his rights, allegedly in
violation of Petitioner’s Fifth, Sixth, and Fourteenth Amendment
rights, (c) ineffective assistance of trial counsel,4 (d)
ineffective assistance of appellate counsel,5 (e) the state’s
failure to preserve and test blood stains on Darwin Godoy’s
3
More specifically, Petitioner asserts that, during
summation, the prosecutor made remarks emphasizing to the jury
Petitioner’s failure to testify in his defense, including the use
of pre-printed boards. Petitioner also asserts that the
prosecutor failed to disclose that George Rivera’s cousin was
employed by the prosecutor’s office.
4
More specifically, Petitioner challenges his counsel’s
failure to present evidence regarding the discovery of George
Rivera’s handwritten recantation letter, failure to present
testimony of Nicholas Kyriazis to discredit George Rivera’s
testimony, failure to present testimony of Melvin Collins to
discredit George Rivera’s testimony, failure to present evidence
establishing that George Rivera had access to Petitioner’s
pretrial discovery, failure to present an expert in fiber
analysis, failure to present a statistician to testify regarding
the state’s fiber evidence, failure to move to suppress Glenn
Kohles’s out-of-court identification of Petitioner, failure to
present an expert in eyewitness identification to counter
Kohles’s out-of-court identification, failure to utilize existing
blood evidence as proof of Petitioner’s innocence, failure to
present a quasi-alibi defense based on Petitioner’s presence at
his girlfriend’s house several hours before and several hours
after the murder, and failure to present evidence that Edwin
Nieves was hospitalized at the time he was alleged to have
accompanied Petitioner to purchase the murder weapon.
5
More specifically, Petitioner challenges appellate
counsel’s failure to challenge the trial court’s omission of a
general identification charge and a specific cross-racial
identification charge.
11
clothing deprived Petitioner of his Sixth and Fourteenth
Amendment rights, and (f) cumulative error deprived Petitioner of
his Sixth and Fourteenth Amendment rights.
Briefing is complete and this matter is now ready for
decision.
II.
28 U.S.C. § 2254
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States.
With respect to any claim adjudicated on the merits in state
court proceedings, the writ shall not issue unless the
adjudication of the claim
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determinated by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases,” or “if the
12
state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [the Court’s] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O’Connor, J.,
for the Court, Part II).
A state court decision “involve[s] an
unreasonable application” of federal law “if the state court
identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case,” and may involve an
“unreasonable application” of federal law “if the state court
either unreasonably extends a legal principle from [the Supreme
Court’s] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply,” (although the Supreme Court expressly
declined to decide the latter).
Id. at 407-09.
To be an
“unreasonable application” of clearly established federal law,
the state court’s application must be objectively unreasonable.
Id. at 409.
In determining whether the state court’s application
of Supreme Court precedent was objectively unreasonable, a habeas
court may consider the decisions of inferior federal courts.
Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).
Even a summary adjudication by the state court on the merits
of a claim is entitled to § 2254(d) deference.
Chadwick v.
Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v.
13
Angelone, 528 U.S. 225, 237 (2000)).
With respect to claims
presented to, but unadjudicated by, the state courts, however, a
federal court may exercise pre-AEDPA independent judgment.
See
Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000),
cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL
1523144, *6 n.4 (D.N.J. 2000).
See also Schoenberger v. Russell,
290 F.3d 831, 842 (6th Cir. 2002) (Moore, J., concurring) (and
cases discussed therein).
In such instances, “the federal habeas
court must conduct a de novo review over pure legal questions and
mixed questions of law and fact, as a court would have done prior
to the enactment of AEDPA.”
Appel v. Horn, 250 F.3d 203, 210 (3d
Cir. 2001) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d
Cir. 1999)).
“However, § 2254(e)(1) still mandates that the
state court’s factual determinations are presumed correct unless
rebutted by clear and convincing evidence.”
Simmons v. Beard,
581 F.3d 158, 165 (3d Cir. 2009).
The deference required by § 2254(d) applies without regard
to whether the state court cites to Supreme Court or other
federal caselaw, “as long as the reasoning of the state court
does not contradict relevant Supreme Court precedent.”
Priester
v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.
Packer, 537 U.S. 3 (2002) and Woodford v. Visciotti, 537 U.S. 19
(2002)).
14
Although a petition for writ of habeas corpus may not be
granted if the Petitioner has failed to exhaust his remedies in
state court, a petition may be denied on the merits
notwithstanding the petitioner’s failure to exhaust his state
court remedies.
See 28 U.S.C. § 2254(b)(2); Lambert v.
Blackwell, 387 F.3d 210, 260 n.42 (3d Cir. 2004); Lewis v.
Pinchak, 348 F.3d 355, 357 (3d Cir. 2003).
Finally, a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers.
Estelle
v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972).
A pro se habeas petition and any supporting
submissions must be construed liberally and with a measure of
tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);
Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
III.
A.
ANALYSIS
Prosecutorial Misconduct
As noted above, Petitioner asserts that, during summation,
the prosecutor made remarks emphasizing to the jury Petitioner’s
failure to testify in his defense, including the use of preprinted boards.
Petitioner also asserts that the prosecutor
failed to disclose that George Rivera’s cousin was employed by
the prosecutor’s office.
15
On direct appeal, the Appellate Division rejected
Petitioner’s claim of prosecutorial misconduct in connection with
the summation.
Both defendants contend that they were denied a
fair trial as a result of misconduct on the part of the
prosecutor during his summation. We disagree. Of the
various remarks complained of, the only ones that were
not fair comment were two brief passing references to
the "only evidence you have heard...."
During his summation, the prosecutor made the
following remarks:
There's a question that keeps on coming up in
this case and you may or may not see this, but I'm
going to post this up, it says where were Suarez
and Morales? Where were they? Specifically, where
were they around 12 o'clock, 12:30, 1 o'clock,
1:18 . . . p.m. on October 23, 1997, when the
State alleges that the murders took place?
Where were they? The evidence you've heard in
this trial, the testimony from the stand, the
different phone records, when you answer this
question and they all come together to coalesce,
the only answer is that Richard Morales and Miguel
Suarez were in Bogota assisting in the commission
of these murders.
. . . .
What did the people say? Where [was] Richard
Morales? Where was Miguel Suarez? Where were they?
You heard from different testimony. Darwin Godoy
told you that Morales and Suarez were in Bogota
committing these murders.
An independent witness from him, somebody
that Darwin Godoy did not know, did not know
existed, did not know would be coming forward
later on in the case years later, George Rivera
told you where Richard Morales . . . was. He told
you where Suarez was.
16
Where weren't they that day? They weren't at
work. We know from Michael Gigante, the supervisor
at Gateway Security, Richard Morales wasn't
scheduled to work that day, Miguel Suarez was not
scheduled to work that day.
Where were they? The only evidence we have
from the stand and from the evidence that you've
heard in this case is that they were in Bogota,
New Jersey, committing the murders.
Police Officer James Sepp . . . also told you
that Darwin Godoy when he got out of the car was
standing in the rear and that time after time,...
the phone would ring. And Darwin Godoy was very
short on the phone saying I can't talk now, I'm
with the police, words to that effect, and that he
would hang up the phone.
The phone records were analyzed in that case
and they come back to Miguel Suarez. So that when
Darwin Godoy testified from that stand and he
tells you that this was the exact amount of time
that Morales and . . . Suarez were in the . . .
house committing the murders and that the phone
was ringing and it was Suarez on the other line
and he was trying to alert him that he's with the
police, it's corroborated by the phone records and
by the testimony of Police Officer James Sepp.
That's exactly how it happened. So when you,
again, analyze is Darwin Godoy telling the truth,
there's independent corroboration of what he tells
you. The Judge will instruct you in this case
about certain concepts. One of the concepts is
that you can look at direct evidence, such as
testimony of say Darwin Godoy who saw Morales and
Suarez do something.
But you can also look at circumstantial
evidence because circumstantial evidence is
sometimes more powerful than direct evidence,
because it's objective, because it's something
that you can't make up, because it's a telephone
record like there, the Caller I.D. with Miguel
Suarez's phone number right blazing on the Caller
I.D. of the house that he killed three people in.
17
How does that happen unless he's involved?
How does that happen that his cell phone number is
directly there on the Caller I.D.[?]
George Rivera said that Miguel Suarez took
the Toyota Avalon out of the driveway and drove it
back to Newark and that he gave it to some people
to burn.
Now how would George Rivera know that except
that Miguel Suarez told him? They were in the same
pod and they had been cell mates for a time. This
was the person that Miguel Suarez trusted.
In its essence those two photographs show
what Miguel Suarez and Richard Morales did on
October 23rd, 1997. Where were they between
approximately 12 o'clock and 1:30 or 1:45? The
only evidence that you have, the only evidence
that you heard in this courtroom from that witness
stand was that they were in Bogota, New Jersey,
committing these brutal and horrific murders.
[Emphasis added.]
At the conclusion of the prosecutor's summation,
both defense counsel moved for a mistrial on the ground
that the prosecutor inferentially commented on
defendants' failure to testify, through his repeated
remarks asking where defendants were on the day in
question. The judge denied the motion, ruling as
follows:
As far as where were Morales and Suarez, in
some respects I do agree with [counsel], it was
awfully close to saying how come they didn't
testify. I don't think it was at that point where
I would declare a mistrial.
Once again, I'm a little disappointed in the
State's choice of words, but I'm not going to
declare a mistrial because of that. It did almost
say where were they, how come they didn't testify,
but I think didn't go as far as . . . case law
indicates. So your request for a mistrial is
denied.
18
The Fifth Amendment forbids comment by the
prosecution on the accused's failure to testify. State
v. Lanzo, 44 N.J. 560, 563 (1965). Although not every
prosecutorial comment on a defendant's failure to
testify constitutes reversible error, "[r]eversal is
mandatory if the prosecuting attorney has unambiguously
called attention to defendant's failure to testify."
State v. Williams, 113 N.J. 393, 454 (1988).
The bulk of the prosecutor' s summation
constituted fair comment on the evidence and nothing
more. See State v. Perry, 65 N.J. 45, 48 (1974); State
v. Farrell, 61 N.J. 99, 103 (1972); State v. Mayberry,
52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043,
89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). To be sure, the
prosecutor's brief references to the lack of other
explanatory testimony from the stand may be viewed as
error, but we are satisfied that under the
circumstances, the error was harmless.
Such remarks are not so egregious to be deemed
reversible error, especially where, as here, the jury
was properly instructed that comments during summation
did not constitute evidence and that the burden of
proof lay with the State. See, e.g., State v. Scherzer,
301 N.J. Super. 363, 439 (App. Div.) (reversible error
not found where prosecutor sang the song Sound of
Silence during summation and also commented that the
"hole" in defendants' defense was that no explanation
had been offered as to the whereabouts of the items
used to sexually assault the victim), certif. denied,
151 N.J. 466 (1997); State v. Engel, 249 N.J. Super.
336, 381 (App. Div.) (reversible error not found where
prosecutor commented during summation that the jury
might wish to ask defendant why he would kill his
former wife), certif. denied, 130 N.J. 393 (1991).
Here, not only was the jury so instructed, but it was
also told that defendants had no burden of proving
anything and had the right not to testify. As such, any
error which occurred was harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.
824, 823, 17. L..Ed. 2d 705, 710 (1967); Scherzer,
supra, 301 N.J. Super. at 441.
Defendants also attribute error to the
prosecutor's extensive use of pre-printed boards during
summation, containing the highlights of his arguments.
Counsel objected below, arguing that the jury could
19
misconstrue the writing on the boards as evidence.
Although the judge overruled the objection, he
cautioned the jury as follows:
[The prosecutor] is going to use some notes that
he's made and post it on the board. Those notes
are not evidence and should not be considered by
this jury as evidence.
They're his contentions that he will be
verbalizing on and he's also had printed out to be
put on the board. Once again, do not consider them
as evidence, they're not evidence. You're not
going to have those with you in the jury room.
It's just part of his summation where he'll
be pointing out what he thinks important details
for you. [sic] Some of the items have a smaller
print than others. I will instruct the jurors to
pay attention to [the prosecutor's] arguments and
do not be distracted by any of those notes on the
board.
In other words, listen to him. If you could
see them, that's up to you. You will not have them
with you in the jury room.
The judge repeated this instruction after a break
during the prosecutor's summation, and further
instructed the jury in his final charge as follows:
There was [sic] also comments made or items used
at the summation by [the prosecutor], put up on
the board, I told you those are not evidence.
Those are just part of his comments. So keep that
in mind. Other items he might have put on the
board is [sic] evidence. So you have to separate
that.
There was no error, much less reversible error, in
the prosecutor's use of pre-printed boards. Nothing
contained thereon exceeded fair comment on the
evidence. Contrary to Morales' representation, the
statement on one of the boards regarding what Betsy
Tufino overheard did comport with her testimony with
the exception of with whom Morales was speaking. In any
event, the jury was cautioned on three separate
occasions that the boards contained nothing more than
20
the prosecutor's arguments and were not to be
considered as evidence in the case.
(Answer, Ex. 3, Appellate Division Opinion at 19-25.)
The U.S. Supreme Court has recognized the obligation of a
prosecutor to conduct a criminal prosecution with propriety and
fairness.
He may prosecute with earnestness and vigor – indeed,
he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935).
As a general rule, under U.S. Supreme Court precedent, where
a prosecutor’s opening or closing remarks are challenged in
habeas, "[t]he relevant question is whether the prosecutor’s
comments ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’"
Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637 (1974)).
Thus, “Supreme Court
precedent counsels that the reviewing court must examine the
prosecutor’s offensive actions in context and in light of the
entire trial, assessing the severity of the conduct, the effect
of the curative instructions, and the quantum of evidence against
the defendant.”
Moore v. Morton, 255 F.3d 95, 107 (3d Cir.
2001).
21
More specifically, the Supreme Court has held that
prosecutorial comment on a defendant’s failure to testify
violates the Fifth Amendment right to remain silent, applicable
to the states through the Fourteenth Amendment.
California, 360 U.S. 609 (1965).
See Griffin v.
Nevertheless, such a federal
constitutional error does not require reversal where the error is
harmless beyond a reasonable doubt.
Chapman v. California, 386
U.S. 18, 23-24 (1967).
Here, the Appellate Division reviewed the prosecutor’s
comments in the context of the entire trial, including the
quantum and nature of the evidence against Petitioner and the
curative instructions given by the trial court, and found any
error harmless beyond a reasonable doubt.
The Appellate Division
decision is neither contrary to nor an unreasonable application
of controlling Supreme Court precedent.
Petitioner is not
entitled to relief on these claims.
Petitioner also asserts here that the prosecutor improperly
failed to disclose that George Rivera’s cousin was employed by
the prosecutor’s office.
This issue was raised by Petitioner in
his petition for post-conviction relief.
(Answer, Ex. 10,
Petitioner’s Brief in support of petition for post-conviction
relief, 50-53.)
There, this issue was framed as a violation of
Brady v. Maryland, 373 U.S. 83 (1963), as a failure to disclose
material exculpatory evidence.
Petitioner also asserted that
22
trial counsel was ineffective for failing to bring this fact out
in an effort to discredit George Rivera.
The trial court
rejected the claim.
Petitioner argues that George Rivera fabricated
his story in order to obtain a favorable plea and
raises various issues with respect to trial counsel’s
failure to discredit Mr. Rivera which he now contends
also constituted ineffective assistance of counsel. ...
Alternatively, [Petitioner] argues that an undercover
detective, Michael Rodriguez, pretended to be Mr.
Rivera’s cousin and further argues that they might in
fact be cousins. In any event he contends, without any
substantiation, that these two individuals “hatched
this entire scheme to help Rivera get out of jail and
ensure that Petitioner rotted in jail.”
(Answer, Ex. 12, Letter Opinion at Da-370-Da371 (October 26,
2007).)
The Appellate Division affirmed substantially for the
reasons stated by the trial court.
See State v. Suarez, 2010 WL
2010930 (N.J. Super. App. Div. May 18, 2010).
The prosecution in a criminal matter has a constitutional
obligation to disclose exculpatory evidence to the defendant.
See Brady v. Maryland, 373 U.S. 83 (1967); Giglio v. United
States, 405 U.S. 150, 154 (1972) (“A finding of materiality of
the evidence is required under Brady.”).
Exculpatory evidence is
considered material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different.”
Strickler v. Greene, 527
U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)).
Nondisclosure merits relief only if the
prosecution’s failure “‘undermines confidence in the outcome of
23
the trial.’”
Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quoting
Bagley, 473 U.S. at 678).
Petitioner presented no evidence to the trial court (or to
this Court) to substantiate his claim that George Rivera had a
cousin employed by the prosecutor’s office, at all, or that any
such cousin participated in a plan to present false evidence at
Petitioner’s trial.
Nor, in light of the substantial evidence
against Petitioner, is there any basis to conclude that the
result of his trial would have been different if evidence of the
purported relationship had been produced to Petitioner and used
at trial.
Accordingly, although the trial court did not
specifically cite to Brady in its decision, this Court finds that
the decision of the state court was neither contrary to, nor an
unreasonable application of, clearly established federal law, nor
was the state court decision based upon an unreasonable
determination of the facts in light of the evidence presented to
it.
Petitioner is not entitled to relief on this claim.
B.
Evidence Issues
1.
Admission of Petitioner’s Statement
Petitioner asserts that the trial court improperly admitted
Petitioner’s telephonic statements to an investigator, made
before Petitioner was advised of his rights, allegedly in
violation of Petitioner’s Fifth Amendment right to remain silent
24
and his Sixth Amendment right to assistance of counsel, both
applicable to the states through the Fourteenth Amendment.
The Appellate Division rejected this argument on direct
appeal.
Suarez contends that the trial judge erred in
failing to suppress his statements, made via telephone,
to Officer Barbato without benefit of Miranda [fn3]
warnings. ... We disagree with these arguments.
[fn3] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966).
Warnings apprising an individual of his Fifth
Amendment right against self-incrimination are required
whenever an individual is subjected to custodial
interrogation by law enforcement officers. Miranda v.
Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L.
Ed. 2d 694, 706-07 (1966). Custodial interrogation is
"questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant
way." Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at
706-07. Accord Stansbury v. California, 511 U.S. 318,
322, 114.S. Ct. 1526, 1528, 128 L. Ed. 2d 293, 298;
State v. Keating, 277 N.J. Super. 141, 144 (App. Div.
1994). In determining whether a custodial interrogation
has occurred, a court must examine all of the
circumstances surrounding the interrogation. State v.
O'Loughlin, 270 N.J. Super. 472, 477.(App. Div. 1994);
State v. Coburn, 221 N.J. Super. 586, 596 (App. Div.
1987), certif. denied, 110 N.J. 300 (1988). It is
custodial interrogation and not the mere focus upon a
particular suspect which implicates the requirement
that the Miranda warnings be given. State v. Graves, 60
N.J. 441, 448 (1972); Coburn, supra, 221 N.J. Super. at
595.
In our view, the very brief telephone conversation
between Suarez and Officer Barbato, during which
Barbato simply requested Suarez come in and speak with
police and asked absolutely no questions regarding the
Bogota murders, does not qualify as a custodial
interrogation. Defendant's status as a suspect in no
way alters this determination. Accordingly, we find
25
that defendant was neither in "custody," nor being
"interrogated" when he angrily responded that the
police would never find him and that he was not going
to turn himself in.
...
... There was no denial of Suarez's Fifth
Amendment rights ... .
(Answer, Ex. 3, Opinion of Appellate Division at 28-30.)
Pursuant to the Fifth Amendment to the United States
Constitution, “No person ... shall be compelled in any criminal
case to be a witness against himself ... .”
In Miranda v.
Arizona, the Supreme Court of the United States held that:
when an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any
significant way and is subjected to questioning, the
privilege against self-incrimination is jeopardized.
Procedural safeguards must be employed to protect the
privilege and unless other fully effective means are
adopted to notify the person of his right of silence
and to assure that the exercise of the right will be
scrupulously honored, the following measures are
required. He must be warned prior to any questioning
that he has the right to remain silent, that anything
he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so
desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After
such warnings have been given, and such opportunity
afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer
questions or make a statement. But unless and until
such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result
of interrogation can be used against him.
384 U.S. at 478-79 (footnote omitted) (emphasis added).
the Fifth and Fourteenth Amendments’ prohibition against
26
Thus,
compelled self-incrimination require that custodial interrogation
be preceded by advice to the defendant that he has the right to
remain silent and also the right to an attorney.
The Supreme Court, however, has “never held that a person
can invoke his Miranda rights anticipatorily, in a context other
than ‘custodial interrogation.’”
171, 182, n.3 (1991).
McNeil v. Wisconsin, 501 U.S.
See also Montejo v. Louisiana, 556 U.S.
778, 795 (2009) (“If the defendant is not in custody then
[Miranda and its progeny] do not apply.”).
Here, the Appellate Division correctly applied Miranda and
its progeny in holding that Petitioner was not subjected to a
custodial interrogation and that there was no violation of his
Miranda rights.
Petitioner is not entitled to relief on this
ground.
Petitioner also asserts a violation of his Sixth Amendment
rights in connection with the failure to suppress his telephone
statement.
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defence.”
The Sixth Amendment
right to counsel, however, “does not attach until a prosecution
is commenced, that is, at or after the initiation of adversary
judicial criminal proceedings – whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.”
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (citations and
27
internal quotation marks omitted).
Petitioner was not under
indictment at the time of the telephone conversation,6 so there
was no violation of his Sixth Amendment right to counsel.
Accordingly, Petitioner is not entitled to relief on this claim.
2.
Blood Evidence
Petitioner claims that the state’s failure to preserve and
test blood stains on Darwin Godoy’s clothing deprived Petitioner
of his Sixth and Fourteenth Amendment rights to a fair trial.
During the traffic stop, Officer Sepp observed blood on
Godoy’s shirt, which he attributed to Godoy’s nail biting.
Petitioner asserts that Godoy committed the murders and that the
blood on Godoy’s shirt must, therefore, be the victims’ blood and
exculpatory of Petitioner.
At the PCR hearing, counsel for the government advised the
Court that the shirt had been seized and tested, that the blood
on the shirt did not match any of the victims, and that the shirt
still existed.
Counsel for Petitioner did not dispute that.
(Answer, Ex. 36, Tr. at 5-7 (March 30, 2007).)
The PCR court rejected this claim, on the ground that the
shirt had been tested and that the reports had been produced, and
the Appellate Division affirmed.
6
(Answer, Ex. 12, Letter Opinion
The indictment against Petitioner is dated April 3, 1998.
(Answer, Ex. 5, at Da1.)
28
at Da372-Da373 (N.J. Super., Law Div., Bergen Co. Oct. 26,
2007).)
As noted above, in Brady v. Maryland, 373 U.S. 83, 87
(1963), the Supreme Court held that “the suppression by the
prosecution of evidence favorable to the accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.”
In United States v. Agurs, 427 U.S.
97, 111 (1976), the Supreme Court held that the prosecution had a
duty to disclose some material exculpatory evidence, but did not
go so far as to require the prosecution “routinely to deliver his
entire file to defense counsel.”
In Arizona v. Youngblood, 488
U.S. 51 (1988), the Supreme Court went to the next step and
considered the duty of the State to preserve potentially
exculpatory evidence.
There, the Court held that “when we deal
with the failure of the State to preserve evidentiary material of
which no more can be said than that it could have been subjected
to tests, the results of which might have exonerated the
defendant,” 488 U.S. at 57, “unless a criminal defendant can show
bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due
process of law,” id. at 58.
Here, the PCR court properly found that Petitioner had
failed to establish either that the potentially exculpatory
29
evidence was destroyed or that there was any bad faith on the
part of the State in its treatment of the blood-stained shirt.
Petitioner is not entitled to relief on this claim.
C.
Ineffective Assistance of Counsel
Petitioner challenges his trial counsel’s performance on
numerous grounds, including failure to present evidence regarding
the discovery of George Rivera’s handwritten recantation letter,
failure to present testimony of Nicholas Kyriazis to discredit
George Rivera’s testimony, failure to present testimony of Melvin
Collins to discredit George Rivera’s testimony, failure to
present evidence establishing that George Rivera had access to
Petitioner’s pretrial discovery, failure to present an expert in
fiber analysis, failure to present a statistician to testify
regarding the state’s fiber evidence, failure to move to suppress
Glenn Kohles’s out-of-court identification of Petitioner, failure
to present an expert in eyewitness identification to counter
Kohles’s out-of-court identification, failure to utilize existing
blood evidence as proof of Petitioner’s innocence, failure to
present a quasi-alibi defense based on Petitioner’s presence at
his girlfriend’s house several hours before and several hours
after the murder, and failure to present evidence that Edwin
Nieves was hospitalized at the time he was alleged to have
accompanied Petitioner to purchase the murder weapon.
In
addition, Petitioner challenges appellate counsel’s failure to
30
challenge the trial court’s omission of a general identification
charge and a specific cross-racial identification charge.
In his state petition for post-conviction relief, the trial
court rejected all of these challenges.
The Sixth Amendment to the United States
Constitution affords defendants in criminal cases the
right to counsel. ... The standard for determining
whether a defendant has received adequate legal
representation was set forth by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). The decision in Strickland was amplified by
U.S. v. Cronic, 466 U.S, 648 (1984), which sets forth
the burden of proof that a defendant must satisfy to
show ineffective assistance of counsel. Likewise, the
New Jersey Supreme Court adopted the Strickland test in
State v. Fritz, 105 N.J. 42 (1987).
The Court in Strickland set forth a two-part test
to evaluate ineffective assistance of counsel claims.
Under Strickland, in order to demonstrate ineffective
assistance of counsel, a defendant must first
demonstrate deficient performance of counsel. This
requires a showing that counsel made errors so serious
that counsel was not functioning as guaranteed by the
Sixth Amendment. Second, the defendant must show that
the deficient performance actually prejudiced the
defense. This requires showing that counsel' s errors
were so serious as to deprive the defendant of a fair
trial whose result is reliable. Strickland v.
Washington, 466 U.S. at 687. See also, State v.
Marshall, 148 N.J. 89,156 (1997); State v. Fritz, 105
N.J. 42,52 (1987). Courts do not need to address both
prongs of the two part test if the defendant makes an
insufficient showing on one. Strickland at 697. See
also, State v. Pennington, 119 N.J. 547, 591 (1990).
When reviewing counsel's performance at trial,
judicial scrutiny must be highly deferential because
"it is all too tempting for a defendant to second guess
counsel's assistance after conviction." Strickland at
690. The Court, upon reviewing an ineffective
assistance claim, must avoid the "distorting effects of
hindsight." State v. Norman, 151 N.J. 5,37 (1997)
(quoting Strickland). As previously noted, there is a
31
strong presumption that defense counsel acted within
the wide range of reasonable professionalism. Id.
...
Further ineffective assistance is alleged with
respect to additional testimony by Nieves that
petitioner sought Nieves' help in procuring one or more
of the guns that petitioner then used in committing the
murder. However, information as to when, where, and how
petitioner may have procured a weapon used in these
murders is certainly relevant and probative. While
petitioner now avers that Nieves was allegedly
hospitalized when this occurred and in Paragraph 187 of
his petition points to hospital admission/release
records, no such records have been provided in support
of this contention.
...
With respect to the fibers discovered in Suarez's
car and on the duct tape used on the victims,
petitioner argues that counsel should have called his
own fiber expert. In his petition, Mr. Suarez also
refers to proposed testimony from a statistician to
qualify and quantify the State's fiber evidence.
Petitioner states that "such expert witnesses will be
identified at a later date and produced for direct and
cross-examination at an evidentiary hearing". However,
before such an evidentiary hearing is ordered the
petitioner must make a threshold showing that such a
hearing is warranted. Petitioner has failed to do so,
as he has not identified any such proposed expert
witnesses nor submitted any reports and/or affidavits
from such experts detailing their scientific
conclusions. Furthermore, as the Appellate Division
held, there was overwhelming evidence that the crimes
occurred. There is no showing that a fiber expert would
have changed the outcome of the case considering the
testimony of Godoy, Tufino, and Rivera all corroborated
the allegation that Suarez killed those three victims.
...
Petitioner argues that George Rivera fabricated
his story in order to obtain a favorable plea and
raises various issues with respect to trial counsel's
failure to discredit Mr. Rivera which he now contends
32
also constituted ineffective assistance of counsel.
Specifically, petitioner asserts that a subsequent
search of petitioner's jail cell revealed a recantation
letter written by Mr. Rivera. Alternatively, he argues
that an undercover detective, Michael Rodriguez,
pretended to be Mr. Rivera' s cousin and further argues
that they might in fact be cousins. In any event he
contends, without any substantiation, that these two
individuals "hatched this entire scheme to help Rivera
get out of jail and ensure that Petitioner rotted in
jail." However, the trial record establishes that trial
counsel and counsel for the co-defendant did in fact
argue that the jury should be precluded from hearing
any testimony with respect to petitioner' s alleged
plot to kill two of the witnesses. This Court is also
mindful of the State' s argument that had defense
counsel attempted to advance the claim that Rivera
concocted the hit man story, that it would have "opened
the door" for the State to present its evidence,
including tape recordings, demonstrating that
petitioner was indeed attempting to hire a hit man to
kill two of the witnesses, who ultimately testified
against him. Thus, as this appears to have been an
issue of trial strategy, the court does not find that
petitioner has adequately established a basis for
relief.
Similarly, the Court rejects petitioner's argument
that trial counsel was ineffective in failing to call
two witnesses, Nicholas Kyriazis and Melvin Collins,
who allegedly had knowledge that Mr. Rivera fabricated
a story to gain a more favorable sentence and/or that
Rivera had access to the petitioner's pre-trial
discovery, thus furnishing him with a source of the
facts which he then utilized in his effort to "frame"
the petitioner. Again the State argues that the
introduction of such testimony would have "opened the
door" to admit its damaging evidence against the
petitioner, and hence defense counsel's decision not to
call these witnesses constituted sound trial strategy.
Petitioner next argues that trial counsel's
performance was deficient in failing to file a
pre-trial motion to suppress the identification made by
Glen Kohles as being suggestive, and failed to hire or
consult with an expert, particularly Dr. Michael R.
Leippe, Ph.D., in the field of reliability of
eyewitness identification. However, it does appear that
33
defense counsel did in fact move to suppress this
out-of-court identification, which the trial court
denied after a testimonial hearing. Also, the
petitioner indicates that this expert has not been
retained, and no report from this or any other expert
has been provided to lend factual support for the
defendant's proffer as to such expert's testimony.
With respect to this identification petitioner
further contends that trial and appellate counsel were
both ineffective in failing to argue that the jury
should have been given a general identification charge
and a specific cross-racial identification charge,
which he argues were both crucial to the jury's proper
interpretation of Mr. Kohles' identification of the
defendant. However, this Court, in reviewing the trial
testimony and evidence in its entirety, concludes based
upon the significant weight of that evidence that the
petitioner has failed to demonstrate that the alleged
error was capable of producing an unjust result. Since
trial counsel apparently did not request these jury
charges, appellate counsel would undoubtedly be aware
that any such argument, if advanced on appeal, would be
governed by the plain error standard. In light of the
Appellate Division's earlier determination that there
was overwhelming evidence of defendant's guilt this
Court concludes that any ineffective assistance of
either trial or appellate counsel has not been shown to
be so sufficient as to likely have affected the outcome
of this trial so as to warrant the post-conviction
relief which petitioner now seeks.
...
Finally, petitioner contends that trial counsel
was ineffective in failing to raise a "quasi-defense",
i.e. that Betsy Tufino's mother, if called, would have
testified that petitioner was observed in the home both
approximately 90 minutes before and after the murders
were committed. However, this proffer appears to be
hearsay which is unsupported by any affidavit or
certification of Ms. Tufino's mother. Moreover, even if
it were so supported, it would not constitute an alibi,
as petitioner candidly concedes, nor in this court's
opinion would it be likely to have changed the result
given the overwhelming evidence against the petitioner.
34
In light of the above, the Court concludes that
the errors and deficiencies now alleged by petitioner,
both individually and cumulatively, are insufficient to
warrant an evidentiary hearing or to grant the
post-conviction relief sought by petitioner.
Accordingly, defendant's petition for post-conviction
relief is hereby DENIED.
(Answer, Ex. 12, Letter Opinion at Da363-Da373 (N.J. Super., Law
Div., Bergen Co. Oct. 26, 2007).)
On appeal, citing to Strickland, the Appellate Division
affirmed substantially for the reasons stated by the trial court.
State v. Suarez, 2011 WL 2010930 at *4.
The state courts correctly identified and applied the
controlling Supreme Court precedent regarding the Sixth Amendment
right to effective assistance of counsel.7
Accordingly,
Petitioner is not entitled to relief on this claim.
D.
Cumulative Error
Finally, Petitioner asserts that cumulative error deprived
him of his Sixth and Fourteenth Amendment rights.
The PCR court found that the errors and deficiencies alleged
by Petitioner were insufficient, “both individually and
cumulatively,” to warrant relief, and the Appellate Division
7
The Supreme Court has held that the Due Process Clause of
the Fourteenth Amendment guarantees a state defendant the
effective assistance of counsel on a first direct appeal as of
right. Evitts v. Lucey, 469 U.S. 387 (1985). The Strickland
standard for effective assistance of counsel applies to appellate
counsel. See Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004).
35
affirmed.
(Answer, Ex. 12, Letter Opinion at Da373 (N.J. Super.,
Law Div., Bergen Co. Oct. 26, 2007).)
Under certain circumstances, cumulative errors may
demonstrate that a criminal defendant was denied a fair trial,
even though individual errors do not justify relief.
Individual errors that do not entitle a petitioner to
relief may do so when combined, if cumulatively the
prejudice resulting from them undermined the
fundamental fairness of his trial and denied him his
constitutional right to due process. Albrecht v. Horn,
471 F.3d 435, 468 (3d Cir. 2006). “Cumulative errors
are not harmless if they had a substantial and
injurious effect or influence in determining the jury’s
verdict, which means that a habeas petitioner is not
entitled to relief based on cumulative errors unless he
can establish ‘actual prejudice.’” Id. (citing Brecht
v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123
L.Ed.2d 353 (1993)).
Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008).
Here, the state courts’ determination that Petitioner had
failed to establish a right to relief based upon “cumulative
error,” is neither contrary to nor an unreasonable application of
clearly established federal law, nor is the decision based on an
unreasonable determination of the facts in light of the evidence
presented.
As noted by the state courts, the evidence against
Petitioner was overwhelming.
Petitioner is not entitled to
relief on this claim.
IV.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
36
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.”
Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
Here, jurists of reason would not disagree with this Court’s
resolution of Petitioner’s constitutional claims.
No certificate
of appealability will issue.
V.
CONCLUSION
For the reasons set forth above, the Petition will be
denied.
An appropriate order follows.
s/ Faith S. Hochberg
Faith S. Hochberg
United States District Judge
Dated: December 20, 2012
37
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