Opinion
DOCKET NO. A-3656-12T1
08-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESUS RODRIGUEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip V. Lago, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistance Prosecutor, on the brief). Appellant filed pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4417. Joseph E. Krakora, Public Defender, attorney for appellant (Philip V. Lago, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistance Prosecutor, on the brief). Appellant filed pro se supplemental brief. PER CURIAM
Defendant Jesus Rodriguez (Rodriguez) appeals the denial of his petition for post-conviction relief (PCR). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
A.
In November 1998, Rodriguez and nine co-defendants were indicted and charged in eighteen counts with six different crimes against four victims, two of whom were killed. They were all charged with four counts of second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and 2C:13-1; four counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); four counts of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3; two counts of murder, N.J.S.A. 2C:11-3(a)(1) and (2); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3); and two counts of attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3. Edwin Diaz, who was also charged with additional counts, Ricardo Diaz (Diaz), David Martinez, Sfand Rajabzaden, Edmund (or Edwin) Rivera, and Miguel Torres, pled guilty. The trial judge denied motions for separate trials.
Because some of those involved in this case share the same surname, we refer to those mentioned less frequently by their full names to avoid confusion.
Rodriguez and co-defendants Luis Manso, Michael Romero, Jose Antonio Perez, and Charles Byrd were tried jointly between January 24 and March 17, 2000. Manso was convicted on all counts. He received an aggregate sentence of incarceration for life.
Rodriguez and the co-defendants who were tried with him appealed. In an unpublished opinion, we affirmed the convictions. State v. Romero, Nos. A-4974-99, A-6593-99, A-0282-00, A-0834-00, A-5704-00 (App. Div. Apr. 12, 2004) (slip op. at 1-118). The Supreme Court denied certification. State v. Romero, 181 N.J. 548 (2004).
B.
All of the defendants were members of the Latin Kings. According to Martinez, who pled guilty to conspiracy to commit murder in exchange for a five-year sentence, Byrd was the highest-ranking Latin King in New Jersey. Romero was next in line. He was chairman of the statewide Crown Council, which Martinez characterized as a court consisting of the chairs of the six regional crown councils.
There were four regional officers below the state officers. Manso was a regional officer with oversight of the local chapters in Elizabeth, Perth Amboy, and Newark. Manso established the Orange Crush, which was an elite enforcement group appointed by him to handle special problems. Martinez and Perez were members of the Orange Crush. Luis Rodriguez testified that he had been the head of Orange Crush "[a]t one time."
Luis Rodriguez pled guilty to conspiracy to commit murder in August 1998, prior to the return of the indictment. His recommended sentence was incarceration for ten years, but he had not been sentenced at the time of trial.
Each local chapter had a First Crown, who was in overall charge; a Second Crown, who assisted the First Crown; a Third Crown, who acted as an enforcer; a Fourth Crown, who acted as secretary; and a Fifth Crown, who was the treasurer. Rodriguez was the First Crown in Newark. Rivera was the First Crown in Jersey City. Diaz was the Enforcer for Paterson. Martinez was the Enforcer for Elizabeth.
An enforcer was in charge of taking care of problems outside the chapter and giving "violations" or "physicals" (beatings) to members who broke rules. The beatings varied in scope and ranged from head to toe or more limited areas of the body, as well as length of time and number of attackers. The most severe "physical" involved being beaten by five men for five minutes, but was not intended to result in death.
According to Martinez, Romero held a meeting of Latin Kings members at his home in Jersey City on June 29. He explained that, on the previous day, Omar D. Morante (Morante) and Jimmy Cabrera had conducted a drive-by shooting at the apartment complex where he lived. Romero believed that he had been the intended target of the shooting. He wanted the Latin Kings to retaliate on his behalf. Byrd, who was at the meeting, agreed to Romero's request. He ordered the Orange Crush to kidnap Morante and Cabrera that night, break their shooting arms, and then kill them.
Later in the day, there was a meeting of approximately twenty-five Latin Kings at Romero's home. Jose Torres, an Orange Crush member, Martinez, Manso, and Perez left the meeting, picked up Omar W. Morante and Juan Cortes, and brought them to Romero's house. Other Latin King members brought Morante and Cabrera to Romero's house. Diaz testified that Romero, Manso, and Rivera discussed the situation privately. Juan DeJesus overheard them trying to dissuade Manso from carrying out Byrd's order, but he responded that "an order is an order."
The two Morantes and Cabrera were brothers.
After the meeting, Martinez drove Rivera's Bronco, with Rivera, Torres, Cortes, and Omar W. Morante as passengers. Manso drove his car, with Romero, Perez, and Morante as passengers. DeJesus drove Rodriguez's vehicle, with Rodriguez, Luis Rodriguez, Diaz, Cabrera, and Rajabzaden as passengers.
Because Martinez was not sure of their destination in Newark, he pulled over near an interchange on the New Jersey Turnpike. The other cars followed. Manso used the pay phones at the interchange to call Byrd and confirm that their orders were to carry out the punishment without a trial. According to Martinez, while Manso was speaking to Byrd, Luis Rodriguez asked to speak to Byrd to persuade him that a trial was necessary, but Manso told him Byrd refused to reconsider the issue. According to DeJesus, when Manso hung up the phone, he said, "[Byrd] said we got to do this."
Defendants stipulated that a call was placed from Byrd's place of employment to a pay phone at Exit 14C of the Turnpike on the night of the murders.
While they were stopped at the tollbooth, Omar W. Morante received permission to leave the car to use the bathroom. Instead, he went to a nearby Turnpike office and asked someone to call the State Police. Cortes was subsequently released. Martinez and the others concluded it was too risky to kill him because he had been seen by toll collectors with some of the defendants during the stop.
Two eyewitnesses to the murders testified for the State, Diaz and Luis Rodriguez. Although Diaz's and Luis Rodriguez's versions of the circumstances surrounding the murders of Morante and Cabrera differed to some extent, they testified that Rodriguez and Romero directly participated in the killings. They also testified that Manso was at the scene and said, "Set it off," after which the attack began. Diaz further testified that Manso directed him to drag Cabrera's body to the water, which he did. According to Luis Rodriguez, Manso ordered him to help Perez drown Morante, but he refused.
Diaz pled guilty to two counts of aggravated manslaughter, conspiracy to kidnap, and conspiracy to commit murder, and received a twenty-year recommended sentence with eighty-five percent parole ineligibility. At the time of his testimony, Diaz had not yet been sentenced.
DeJesus also testified for the State. He confirmed Martinez's account of the Turnpike stop and Manso's call to Byrd. He explained that he stayed in the car at the scene of the attack because Rodriguez had told him to do so. DeJesus did not witness the murders. He testified, however, that he saw the others run out of the bushes all sweaty and dirty.
DeJesus pled guilty to conspiracy to commit murder and received a ten-year recommended sentence, but had not yet been sentenced at the time of trial.
C.
Rodriguez filed his PCR petition in March 2005. He raises issues primarily related to allegations of constitutionally ineffective assistance of trial, appellate, and PCR counsel, as well as trial errors not raised on direct appeal.
The PCR judge held an evidentiary hearing on Rodriguez's PCR petition, as well as those filed by Manso, Romero, and Perez, on three days between November 22, 2011, and April 11, 2012. In a written decision and order dated January 7, 2013, the PCR judge denied relief and dismissed Rodriguez's petition. He reached the same result with respect to the petitions filed by the other three defendants. This appeal followed.
II.
Rodriguez raises the following issues on appeal:
POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE [RODRIGUEZ] RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Failed to File a Severance Motion.
B. Trial Counsel Failed to Object to the State's Systematic Elimination of Hispanics From the Jury Panel During Jury Selection, Failed to Attend or Procure Replacement Counsel for All Jury Selection Proceedings and Failed to Adequately Question Potential Jurors.
POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE [RODRIGUEZ] RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.
POINT III: THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON THE AFFIRMATIVE DEFENSE OF DURESS SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT IV: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT AND COUNSEL DEPRIVED [RODRIGUEZ] OF HIS RIGHT TO TESTIFY.
POINT V: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
POINT VI: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE [RODRIGUEZ]'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER [RULE] 3:22-5.
POINT VII: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE [RODRIGUEZ]'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER [RULE] 3:22-4.
In a pro se supplemental brief, Rodriguez argues:
POINT I: [RODRIGUEZ] WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.
POINT II: THE ORDER DENYING PCR MUST BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE [RODRIGUEZ][] ON WHETHER OR NOT TO TESTIFY, TO INFORM HIM THAT THE CHOICE WHETHER TO TESTIFY WAS ULTIMATELY HIS TO MAKE, AND TO HONOR [RODRIGUEZ]'S WISH TO TESTIFY DEPRIVED [RODRIGUEZ] OF THE EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL.
A. Contrary to the PCR Court Opinion, the Record Shows That [Rodriguez][] Was Not Advised of His Right to Testify, Nor That He Declined Said Right.
B. Trial Counsel's Error Prejudiced [Rodriguez][] and Deprived Him of a Fair Trial.
In a second pro se supplemental brief, Rodriguez adds these additional claims:
POINT I: CONTRARY TO RESPONDENT'S ARGUMENT[,] THIS APPEAL IS NOT PROCEDURALLY
BARRED AND JURISDICTIONALLY BARRED AND IT SHOULD BE CONSIDERED FILED AS WITHIN TIME.
POINT II: CONTRARY TO RESPONDENT'S ARGUMENT[,] THE RECORD SHOWS THAT [RODRIGUEZ][] WAS PREJUDICED BY DEFENSE COUNSEL DEPRIVING HIM OF HIS RIGHT TO TESTIFY.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 n.26, 80 L. Ed. 2d at 668 n.26. See also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We generally defer to a PCR judge's factual findings resulting from a plenary hearing when they are based on "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). See State v. Locurto, 157 N.J. 463, 470-71 (1999). When addressing issues of credibility, we recognize that a trial judge has the unique "opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). For mixed questions of law and fact, we will uphold "the supported factual findings of the trial court, but review de novo the . . . application of any legal rules to such factual findings." Harris, supra, 181 N.J. at 416 (citation omitted); State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 170 N.J. 207 (2001). The standard of review on questions of law raised in a PCR petition is de novo. Harris, supra, 181 N.J. at 415.
A.
We begin our analysis with Rodriguez's contentions concerning ineffective assistance of trial counsel.
i.
Rodriguez contends that his trial attorney Paul Feinberg was constitutionally ineffective because he failed to file a motion to sever. He asserts that the joint trial prejudiced him because "he had a less culpable role in the crimes" than his co-defendants, and that "[s]everance would have guaranteed that [he] would not have been prejudiced by the admission of evidence of his co-defendants['] horrific acts."
All defendants moved for severance based on antagonistic defenses. Byrd moved for severance on the grounds of guilt by association, and Diaz and Torres joined in that motion. The trial judge denied all the motions for severance.
On his direct appeal, Manso argued that the trial judge erred in denying the motion for severance because "the joint trial created the danger of guilt by association, which was not cured by the jury charge." We rejected Manso's argument, explaining that
[a] danger of guilt by association exists in all joint trials, but that is not in itself sufficient to justify a severance if the separate status of co-defendants can be preserved through proper jury instructions. State v. Brown, 170 N.J. 138, 162 (2001).
Here, the instructions were appropriate and we conclude that the judge properly denied the motion to sever.
[Romero, supra, slip op. at 55.]
The PCR judge held that Rodriguez's severance argument was procedurally barred by Rule 3:22-5, because we had rejected Manso's similar argument on direct appeal. We agree.
In State v. McQuaid, 147 N.J. 464, 484 (1997), the Supreme Court held:
"A prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same ground as a basis for post-conviction review." Preciose, supra, 129 N.J. at 476. However, claims that differ from those asserted below will be heard on PCR. "Preclusion of consideration of an argument presented in post-conviction relief proceedings should be effected only if the issue is identical or substantially equivalent" to that issue previously adjudicated on its merits. Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 512-13, 30 L. Ed. 2d 438, 444 (1971); State v. Bontempo, 170 N.J. Super. 220, 234 (Law Div. 1979). If the same claim is adjudicated on the merits on direct appeal a court should deny PCR on that issue, thereby encouraging petitioners to raise all meritorious issues on direct appeal.We are satisfied that the arguments made by Manso on direct appeal and Rodriguez in his PCR petition are sufficiently similar to warrant the application of Rule 3:22-5.
Even if it were not barred, however, we find no basis to conclude that the trial judge would have granted Rodriguez's motion on those grounds but denied the motions filed by the other defendants. As a result, Rodriguez has failed to demonstrate the second Strickland prong. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion." State v. O'Neal, 190 N.J. 601, 619 (2007).
Consequently, we find no error in the PCR judge's refusal to grant relief on the basis of this claim.
ii.
We now turn to Rodriguez's contention that the PCR judge erred by finding that he was not denied effective assistance of counsel despite Feinberg's absence during a portion of jury selection, as well as his contention that the judge erred in holding that Rule 3:22-5 barred him from asserting that Feinberg was deficient because he did not object to the State's alleged systematic elimination of Hispanics from the jury.
a.
We start with Rodriguez's contention that Feinberg was constitutionally ineffective because he failed to attend all sessions of jury selection and, as a result, failed to interview potential jurors adequately. According to Rodriguez, that resulted in Feinberg not objecting to the underrepresentation of Hispanics on the jury panel.
The trial record reflects that Feinberg was absent on three days of jury selection: January 24, 26, and 27, 2000. On January 24, the judge instructed a group of potential jurors on the jury selection process and gave a brief overview of the case. In explaining Feinberg's absence, the judge told the jury panel:
We have had a minor illness of one of our attorneys, and so I am working around that. I am attempting to use the time that we have to get your questionnaires filled out, which is time consuming, [and to] give the attorneys an opportunity to review them so we are prepared to question you without wasting a lot of your time unnecessarily.
On January 26, the judge similarly instructed another group of potential jurors and distributed questionnaires. The judge again told the potential jurors about Feinberg's illness:
We experienced a minor illness of one of the attorneys. Fortunately, we were able to work around that due to the professionalism of the attorneys. It was agreed I would work with you by myself, and for the purpose of getting these questionnaires filled out, which helps us a lot if the attorneys have access to them to be able to review them, as well as myself, so we will not be off schedule by more than a couple of days by virtue of the attorney's illness.
I was able to find out this morning it was not serious, so that person will be able to be back with us on Monday[, January 31, 2000].
On January 27, the judge distributed the questionnaires to counsel and informed them that Feinberg would have an opportunity to review the questionnaires before returning on the afternoon of January 31, 2000. The judge also instructed another group of potential jurors and distributed their questionnaires. The judge explained that she had begun the process of orienting potential jurors and distributing questionnaires to accommodate Feinberg's absence. She added: "We now know when the attorney will be returning, and with the agreement of counsel, I am doing the orientation and filling out the questionnaires without them so as to keep on schedule."
The trial did not resume until the following week. The record reflects that Feinberg was present for the remainder of jury selection.
Feinberg testified at the PCR hearing that he suffered from a heart attack during the first week of trial. He missed the portion of jury selection during which the trial judge excused potential jurors for hardships, as well as the time during which potential jurors completed written questionnaires. According to Andrew Rojas, who represented Perez, the potential juror questionnaires were collected and reviewed only for screening those potential jurors with hardships while Feinberg was absent. Rojas testified that he represented Rodriguez's interests at that time.
The PCR judge rejected Rodriguez's argument:
Here, unlike State v. McCombs, [81 N.J. 373,] 374 [(1979)], Rodriguez was not "left adrift during so crucial a phase of the trial as the jury selection process." The selection, or more precisely, the rejection ritual was barren of the challenges inherent in jury selection. There was no weighing of the worthiness of any perspective juror. What transpired was a pre-jury selection session that was solely designed to eliminate "hardship cases" through the inspection of the submitted questionnaires. The testimony of Mr. Feinberg and Mr. Rojas and the trial transcript plainly convey what unfolded and the purpose of the protocol utilized. This preliminary review as described was not a "critical stage" and as a consequence there was no transgression of the defendant's "right to counsel."
The PCR judge's factual findings with respect to what occurred during the limited portion of jury selection missed by Feinberg is fully supported by the record. During those three days, the trial judge held orientation sessions for prospective jurors and instructed them to complete questionnaires to determine whether their jury service would "impose a severe hardship due to circumstances which are not likely to change within the following year." N.J.S.A. 2B:20-10(c). When Feinberg returned, he was afforded the opportunity to review the questionnaires and participated in the remainder of jury selection.
At no time during Feinberg's absence were potential jurors questioned on other issues or removed peremptorily or for cause. The facts in this case are significantly different from those in McCombs, supra, 81 N.J. at 374-79, in which the Supreme Court held that a defense attorney who did not participate in the entire jury selection process was deficient.
For the reasons expressed above, we find no merit in Rodriguez's arguments concerning Feinberg's alleged ineffectiveness during jury selection.
b.
We now turn to the issue raised with respect to the ethnic composition of the jury. Feinberg and John Hardaker, who represented Romero at trial, joined in a challenge to the ethnic composition of the jury array at trial, which the trial judge rejected on the merits. The judge found that Essex County's array selection process had previously withstood constitutional scrutiny. On direct appeal, Romero argued "that his counsel's failure to effectively challenge the jury selection process on the ground that it unfairly excluded Hispanics deprived him of his constitutional right to effective assistance of counsel." We rejected Romero's argument, finding that the trial judge had correctly relied on State v. McDougald, 120 N.J. 523, 549-50 (1990), and State v. Ramseur, 106 N.J. 123, 212-38 (1987), both of which affirmed the constitutionality of Essex County's grand and petit jury selection processes.
Rodriguez argued on his direct appeal "that he was deprived of his right to due process of law because the jury did not include enough Hispanics to fairly represent his ethnic group." We rejected that argument, relying primarily on our analysis of Romero's similar argument.
Because we had rejected Romero's similar argument on Romero's direct appeal, the PCR judge found that Rodriguez's PCR claim was barred by Rule 3:22-5, which provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." Rodriguez argues, however, that his claim is "fundamentally different from the claim raised in the direct appeal" because it is "based on trial counsel's ineffectiveness in failing to procure coverage for the questionnaire proceeding during his hospitalization; due to counsel's failure, defendant had no opportunity to raise a timely objection to the racial makeup of the panel." (Emphasis added.)
As previously noted, Feinberg did object to the ethnic composition of the jury array, and the trial judge rejected the argument on the merits. Rodriguez has not demonstrated that Feinberg's objection would have been successful had it been raised earlier in jury selection process, during the brief period of time he was absent. As a consequence, he cannot satisfy the second Strickland prong, even if he could have satisfied the first.
Consequently, we find no merit in Rodriguez's arguments with regard to this issue.
c.
Finally, Rodriguez maintains that the PCR judge erred in determining that his trial counsel was not ineffective because he did not adequately advise him with respect to his constitutional right to testify at trial. Although the issue was not included in Rodriguez's PCR petition and was not raised until the pro se Supplemental Closing Argument he submitted following the PCR hearing, we reach the merits rather than deeming it procedurally barred.
A criminal defendant has a constitutional right to testify. State v. Savage, 120 N.J. 594, 626-28 (1990). Defense counsel's failure to advise a defendant properly concerning that constitutional right can give rise to a claim of ineffectiveness of counsel. Id. at 631. "It is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages and disadvantages of doing so or of not doing so." State v. Bogus, 223 N.J. Super. 409, 423 (App. Div.), certif. denied, 111 N.J. 567 (1988). "Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it." Savage, supra, 120 N.J. at 631.
In contrast to Manso and Romero, Rodriguez did not assert his desire to testify, the failure of his attorney to advise him of his right to testify, or the nature of his proposed testimony under oath, either by testifying at the PCR hearing or in a certification in support of his PCR petition. Those assertions were made only in his unsworn, pro se Supplemental Closing Argument.
Feinberg testified at the hearing that he "always talk[ed] to the defendant about the right to testify," and that his "standard practice [was] to continue talking during the course of the case to see whether they want to testify." He added that, at the end of the State's case, he "typically [sat] down with the client and go over that." However, he had no independent recollection of doing so with Rodriguez. He acknowledged that, although he "routinely" asked the trial judge to voir dire his client on the issue, he had not done so in this case.
Despite the testimony that Feinberg usually asked the judge to voir dire the defendants but did not do so in this case, the PCR judge could have found that Feinberg followed his usual practice and advised Rodriguez of his right to testify, especially in light of Rodriguez's failure to certify to the contrary. However, even if we were to find that Rodriguez was not advised of his right to testify, we conclude that Rodriguez has not satisfied the second Strickland prong on this issue. That requirement is applicable in a case involving a defendant's right to testify. State v. Bey, 161 N.J. 233, 271-72 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).
We give no weight, however, to the PCR judge's assertion that the giving of the election-not-to-testify charge supports his conclusion that trial counsel discussed the right to testify with their clients. There is no reason to conclude that the trial judge had any such knowledge. --------
Rodriguez claims that he "could have testified to facts which would have convinced the jury that his participation in the offenses, if any, was minimal and due solely to duress." In his pro se supplemental brief, Rodriguez also alleged that he would testify that
he took no part in the meeting before theRodriguez made a similar assertion in the pro se Supplemental Closing Argument at the end of the PCR hearing. Those assertions, as noted above, have never been supported by any certification.
murders thus he could not have told state witness Angel Tirado that somebody might get killed, as Tirado testified. That Tirado visited him at the Essex County jail and informed him that the prosecutor threatened to charge Tirado if he did not say Rodriguez had knowledge that the murders were going to take place. That Rodriguez thought the victims were taken to the park to receive a physical (light assault), and he tried to stop the murders and got hit with an object that knocked him out.
Rodriguez had a record and would have been cross-examined on that basis. His admission that he had some involvement with the Latin Kings and the events of June 29, 1998, would have opened him up to considerable cross-examination and would most likely have been counterproductive. We find no basis to conclude that there was "a reasonable probability" that "the result of the [trial] would have been different" had Rodriguez testified as he claims he would have. Strickland, supra, 4 66 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
d.
The remainder of Rodriguez's claims concerning ineffective assistance of trial counsel, which are presented in a cursory manner, are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Consequently, we find no error in the PCR judge's denial of relief on Rodriguez's claims of ineffective trial counsel.
B.
Having reviewed the remainder of Rodriguez's arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Rodriguez's argument with respect to the trial judge's failure to give a duress charge sua sponte is procedurally barred by Rules 3:22-3 and 3:22-4(a). In any event, the trial record does not support Rodriguez's claim that he acted only under duress and we conclude that such a charge was not warranted.
Rodriguez argues that his appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness on direct appeal. Allegations of ineffective assistance of counsel are not ordinarily considered on direct appeal because they usually require consideration of facts that are not part of the record, as is certainly the case here. See Preciose, supra, 129 N.J. at 460. Consequently, appellate counsel was not ineffective in failing to raise the issue.
We decline to consider Rodriguez's arguments concerning the alleged ineffectiveness of his PCR counsel, which were not raised in the trial court and as to which no record has been developed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION