Opinion
DOCKET NO. A-5281-12T1
03-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CAMILO LOPEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1395. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.
A jury convicted defendant of first-degree murder and felony murder, charges that arose from the 1988 fatal shooting of a parking garage attendant. Defendant was sentenced to fifty years with a parole ineligibility period of thirty years.
Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Lopez, No. A-0488-07 (App. Div. Aug. 19, 2010), certif. denied, 205 N.J. 81 (2011). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated in detail here.
Following up on information received from a confidential informant seventeen years after the murder, a State Police detective interviewed William Cortez, who admitted he had worked at the parking garage and allowed people to take cars for joyrides in exchange for money. Cortez was in jail in Florida at the time of the shooting, but heard George Quintero and another man had gone to the parking garage to steal cars and someone was shot. After additional investigation, it was learned there were three men at the parking garage the night of the shooting: defendant, Quintero, and Ismael Hernandez. Defendant was identified as the shooter. Quintero and Hernandez were charged as co-defendants and testified against defendant at his trial.
At a pre-trial conference, defense counsel, Joseph E. Krakora, informed the court he was unable to locate Cortez, whom he described as "a necessary defense witness," and that he was concerned he could not "adequately defend [defendant] without the testimony of Mr. Cortez." Krakora reported that he and the Public Defender's office had "tried hard to find him," and also requested assistance from the State. The prosecutor reported that the State Police detective who "deals with" Cortez had "lost track" of him and they were making efforts to find him. When Cortez could not be located for trial, the parties entered into a stipulation as to what Cortez would have testified to, based on his statements to State Police detectives.
At trial, Hernandez testified that, on the night of the murder, he heard two gunshots and then saw defendant with a "small revolver, .38 chrome" in his hand as he ran from the guard booth. The bullet recovered from the victim's body was a .32 automatic caliber bullet.
In his petition, defendant argued his counsel was ineffective because he failed to locate and produce Cortez as a defense witness and instead, entered into a stipulation with the State concerning Cortez's testimony. Defendant also contended his counsel should have presented expert testimony regarding the discrepancy between the caliber of the bullet recovered from the victim and the caliber of the gun Hernandez said defendant had in his possession. Alternatively, defendant argued that the bullet discrepancy and the testimony of Cortez constituted newly discovered evidence warranting a new trial.
In support of his petition, defendant submitted a certification from Cortez which stated he knew Hernandez and Quintero, but not defendant. He further certified that "[a]t no point did any of those individuals discuss with [him] a plan to steal cars from that parking garage in or around July 30, 1988, when the victim was killed." Defendant also submitted a certification from Frank Caso, a firearms expert, stating he "reviewed the ballistics reports" and opined that "[a] .32 Auto Caliber bullet cannot be fired by a revolver." The PCR judge specifically granted the hearing to take testimony as to whether a .32 revolver could fire a .32 automatic bullet.
At the PCR hearing, Cortez admitted he let one person take cars from the lot for joyrides, but denied he ever allowed Hernandez, Quintero, or defendant to joyride and denied ever formulating a plan with any of them to steal cars. Cortez testified he was never contacted by the Public Defender's office or the Prosecutor's Office in 2007 or 2008. He stated, "In 2007 I was in New York locked up, then I came to Hudson County." He testified he was in Hudson County jail in the beginning of 2008, then incarcerated at Southern State Prison until 2011.
Defendant testified that prior to his trial, he told Krakora that Cortez was "a very important witness" who needed to testify to prove that Hernandez was lying about the plan to steal cars. Krakora testified he could not recall the specific efforts made to locate Cortez, but stated "it was really undisputed that neither side could find him." Krakora said he agreed to the stipulation so the jury could hear that Cortez was not in New Jersey and could not have been present at the parking garage at the time of the murder. He opined that this fact would show that Hernandez and Quintero were not telling the truth because "they would have certainly known that [Cortez] had been fired a month earlier and wasn't even in the area."
In his testimony at the PCR hearing, Cortez identified only two inaccuracies in the stipulation that were both minor and irrelevant to our analysis here — that he only provided cars for joyriding to one person on a regular basis and that a liquor store he mentioned was on a different street than the one identified in the stipulation.
Defendant testified at the PCR hearing that when he heard his co-defendant testify he used a .38 revolver, he asked his attorney to secure a ballistics expert because a .32 bullet could not be fired from a .38 revolver, and that his attorney was ineffective for failing to do so. Defendant alleged that Krakora said "he was not going to spend the money" to hire an expert and, instead, planned to elicit the necessary testimony from the State's expert. He also claimed Krakora said that the court would not allow him to hire an expert mid-trial. Defendant also maintained that he did not see the actual "ballistic report" until three to four years after the trial. He claimed that "[t]hat's when [he] noted the discrepancy" and filed his PCR.
Krakora testified he did not "recall one way or the other" having any conversations with defendant regarding the bullet discrepancy. He stated he generally had a familiarity with firearms and ballistics and would have reviewed the pertinent evidence to see if it "had any part in the case."
Caso did not testify at the PCR hearing. The expert called by defendant, James Gannalo, testified that the bullet recovered from the victim could not have been fired from a .38 revolver, but could have been fired by a .32 revolver. He explained that even though it was possible, using automatic ammunition in a revolver was not a preferred practice as it could cause the weapon to malfunction, potentially injuring the person firing it. Gannalo also stated the use of a revolver could explain the lack of shell casings at the scene of the shooting. Gannalo said that in order to distinguish between a .38 revolver and a .32 revolver, one would look at the side of the weapon for a stamp indicating its caliber; otherwise, one would have to measure the interior diameter of the barrel. He stated the difference in the barrel sizes between the two guns is less than four one-hundredths of an inch. Gannalo stated that either assessment would have to be made while in close proximity to the weapon and that it would be "very difficult" to tell the difference between the two, even at a distance of only a few feet.
The trial court held defendant failed to meet his burden on his ineffective assistance of counsel claim as to both issues. The court also held that neither the testimony of Cortez nor the bullet discrepancy constituted newly discovered evidence warranting a new trial.
Defendant raises the following issues in his appeal:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO INVESTIGATE THE DISCREPANCY BETWEEN THE .38 CALIBER REVOLVER ALLEGEDLY POSSESSED BY DEFENDANT AND THE .32 AUTO CALIBER BULLET REMOVED FROM THE DECEASED'S BODY, AND TRIAL COUNSEL'S FAILURE TO PRODUCE WILLIAM CORTEZ AS A
WITNESS AND TO ENTER INTO A STIPULATION INSTEAD, SATISFIED BOTH PRONGS OF THE STRICKLAND TEST AND AN UNJUST RESULT AT TRIAL ENSUED.
POINT II
THE PCR COURT'S DECISION DENYING DEFENDANT'S PETITION VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III
EVIDENCE THAT THE .32 AUTO CALIBER BULLET THAT KILLED THE PARKING GARAGE ATTENDANT COULD NOT BE FIRED FROM THE .38 CALIBER REVOLVER ALLEGEDLY USED BY DEFENDANT, AND THE EXCULPATORY TESTIMONY OF WILLIE CORTEZ, CONSTITUTED NEWLY DISCOVERED EVIDENCE ENTITLING DEFENDANT TO A NEW TRIAL.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, supra, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Where, as here, the PCR court has conducted an evidentiary hearing, we "necessarily defer to the trial court's factual findings." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014); accord State v. Nash, 212 N.J. 518, 540 (2013). "In such circumstances [the appellate court] will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid. However, an appellate court "need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo." Id. at 540-41.
We first address defendant's argument regarding counsel's failure to locate and produce Cortez as a witness at trial. He alleges that Cortez was incarcerated in 2007 and 2008 and, therefore, would have been located following a simple search. He fails to provide a certification or affidavit, as required by Rule 3:22-10(c), to support his contentions that Cortez was incarcerated at the relevant time or that his location could be easily determined. At the pretrial conference, both the State and defense counsel advised the court that efforts to locate Cortez were unsuccessful. It was undisputed that neither side could find him. The PCR judge's finding that Cortez was unavailable was, therefore, supported by credible evidence and entitled to our deference. See id. at 540. Moreover, even if Cortez had been located, it is unlikely his testimony would have produced a different result.
Krakora testified he agreed to the stipulation because he wanted the jury to know that Cortez was not in New Jersey and could not have been at the parking garage that night to discredit testimony from a co-defendant that they went to the parking garage that night to get cars from him while he was on duty as an attendant. Those facts were provided in the stipulation. Cortez's testimony at the PCR hearing revealed that he was subject to impeachment based upon his criminal history and that his live testimony added little, if anything, to help the defense.
By agreeing to a stipulation as to what Cortez would have said at trial, defense counsel was able to present the jury with facts he deemed helpful without subjecting Cortez to impeachment on cross-examination. Defendant's argument on this point fails to present prima facie evidence to satisfy either of the Strickland/Fritz prongs.
Defendant's other argument concerns the failure to present evidence regarding the alleged discrepancy between the caliber of gun described by Hernandez and the caliber of the bullet recovered from the victim's body. Hernandez was sixteen-years-old at the time of the murder. He said he knew the gun was a revolver because of "the round thing," explaining that his father kept a revolver for protection in his liquor store. On a prior occasion, he observed the gun tucked inside defendant's waistband. On the night of the murder, he only observed the gun as defendant ran towards him. Neither opportunity provided the close inspection that defendant's expert stated was needed to properly identify the caliber of the weapon.
Thus, even if we accept defendant's testimony that he alerted Krakora to the bullet discrepancy issue at trial, the evidence that could have been elicited from an expert was inconclusive at best. The expert's opinion regarding the difficulty in differentiating between a .38 revolver and a .32 revolver supported the reasonable inference that Hernandez was simply mistaken, rather than creating a reasonable doubt as to defendant's guilt. Again, neither prong of the Strickland/Fritz test was satisfied.
Finally, defendant argues that a new trial is warranted because Cortez's testimony and the evidence regarding the bullet discrepancy constituted newly discovered evidence. To prevail on this argument, defendant must establish all three of the following criteria. The evidence must be "'(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.'" Nash, supra, 212 N.J. at 549 (quoting State v. Carter, 85 N.J. 300, 314 (1981)); accord State v. Ways, 180 N.J. 171, 187 (2004). He has failed to do so.
Cortez's testimony fails to satisfy this criteria because its sole purpose was for the impeachment of State witnesses on details not material to the defense. His testimony failed to add anything other than what the stipulation already covered. It did not provide him with an alibi or support a general denial of guilt. Therefore, it was not likely to result in a different jury verdict at a new trial.
The discrepancy as to the bullet also does not constitute newly discovered evidence. At the outset, it should be noted that it is unclear when exactly defendant claims he "discovered" the evidence. At the PCR hearing, defendant alleged that he brought the discrepancy to his attorney's attention during the trial. Defendant later stated, during the same hearing, that he did not notice a discrepancy until several years after the trial, when he finally saw the forensic report. Nevertheless, the discrepancy between the report on the bullet and Hernandez's description of the gun was put before the jury at trial. Defendant could not produce an expert to support his initial assertion that a revolver could not fire the bullet recovered from the victim's body. Thus, defendant cannot show that his expert's testimony would have altered the jury's verdict.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).