Opinion
DOCKET NO. A-2504-11T2
05-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALBERTO SALAZAR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Kimberly Donnelly,Special Deputy Attorney/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-03-0349.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Kimberly Donnelly,Special Deputy Attorney/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Alberto Salazar, who is serving a custodial term of thirty years without parole for felony murder, appeals from the order that denied his post-conviction relief (PCR) petition without an evidentiary hearing. He argues, among other things, that trial counsel was ineffective for failing to present the testimony of a forensic pathologist who would have told the jury, as he told defense counsel in his report, this:
Responsibility for the head trauma which led to the stroke that ultimately caused [the victim's] death apparently was arbitrarily assigned to [defendant]. However, in view of the history and physical evidence of repeated falls in which [defendant] was apparently not involved, it cannot be stated with reasonable medical probability that he caused the fall that ultimately was responsible for her death.
Defendant presented a prima facie case that his trial counsel was ineffective for not presenting the doctor's testimony. The judge who considered the PCR petition erred by ruling to the contrary. Accordingly, we reverse and remand for a hearing.
I.
The record establishes the following facts. The victim, Margaret Feehan, age 88, lived alone on the third floor of an apartment complex in Elizabeth. Defendant, a maintenance man in the complex, gave this account of the crime to detectives to whom he confessed:
I went back to Miss Feehan's and she was on her way walking towards me in the hallway. Then she handed me $2 and 25 cents. I came
down the stairs, went to the store, picked up the coffee and bun. I went back into the building, got into my apartment and told my other daughter to get ready to work and she answered me that she was tired and she wasn't going to go.
Then I went to Miss Feehan's apartment with the coffee and the bun. I got into the apartment. The door wide open like always. Miss Feehan was sitting on the couch in the living room. I helped her get up from the couch, took her to the kitchen, put the coffee and the bun on the table and she was standing by the table. And I walked back towards the living room and I saw the pocketbook. It was a chance for me to take the pocketbook which I picked up with my right hand. I started walking out. By the time I got to the front door Miss Feehan saw me and asked me what you do. I got scared. I had the pocketbook on my left side. I turned around facing her when she grabbed my left arm which was holding the pocketbook in. I tried to get her off my arm by pulling my arm away from her. Her glasses fell off. Then she lost balance and fall straight back.
[Question by Detective]: Did you see her hit the floor?
[Answer by Defendant]: Yes.
[Question by Detective]: Did you think she lost consciousness when she hit the floor?
[Answer by Defendant]: Yes because she didn't make any sounds.
[Question by Detective]: What did you do next?
[Answer by Defendant]: I left the apartment and closed the door after me and went
straight to my apartment with the pocketbook.
The victim died on January 4, 2001, the day after the robbery. According to the assistant county medical examiner who performed the autopsy, the cause of death was blunt force head trauma and the manner of death was homicide. A New York University Professor of Neuropathology who examined Feehan's brain corroborated the medical examiner's findings, testified there was no evidence that Feehan died from a stroke, and ruled out natural disease processes as the cause of her death.
Following defendant's arrest a grand jury charged him in a three-count indictment with second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), and second-degree robbery, N.J.S.A. 2C:15-1. Defendant subsequently moved to suppress the statements that he gave to the police. The trial court denied his motion. The case was tried and a jury convicted defendant on all counts. At sentencing, the court merged manslaughter and robbery with felony murder, sentenced defendant to a custodial term of thirty years without parole, and imposed appropriate penalties and assessments.
Defendant filed a direct appeal in which he raised two arguments: the statements he made to the police were the product of "custodial interrogation" and inadmissible because he was not given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and his sentence for felony murder was excessive. State v. Salazar, No. A-6235-03 (App. Div. February 6, 2008) (slip op. at 2, 6). We affirmed his conviction and sentence. Id. at 7. The Supreme Court denied defendant's petition for certification. State v. Salazar, 195 N.J. 523 (2008).
Four months after the Supreme Court denied defendant's petition for certification, he filed his PCR petition, in which he made the following arguments: Ground One: Pursuant to State v. O'Neill, 193 N.J. 148 (2008), the Interview Prior to the Miranda Warnings, Which the Trial Court Found Was Not "Custodial Interrogation," Had an Adverse Impact On Defendant's Subsequent Waiver of His Right to Remain Silent After He Received Miranda Warnings. Ground Two: Appellate Counsel's Neglect in Failing to Pursue That Aspect of the O'Neill Holding May Have Had a Significant Impact in Gaining Relief During The Appeal.
The court appointed counsel to represent defendant and counsel filed a brief in which he raised the following arguments:
POINT I
THE STATEMENT ALLEGEDLY MADE BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE DEFENDANT WAS DEPRIVED [OF] HIS CONSTITUTIONAL RIGHT TO TESTIFTY ON HIS OWN BEHALF.
POINT III
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT IV
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT V
THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.
POINT VI
AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
POINT VII
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION.
The judge who heard defendant's PCR petition initially denied it as to his claims against trial counsel, but granted a hearing as to his claims against appellate counsel. The judge denied defendant's claims concerning his confession because they had been decided on direct appeal, and denied his claim that he was deprived of his constitutional right to testify because the trial transcript demonstrated that he knowingly waived it. The judge rejected defendant's ineffective assistance claim based on failure to call the medical expert as a witness because defendant's trial strategy was to deny pushing the victim altogether. The judge did, however, grant defendant an evidentiary hearing as to whether his appellate counsel was ineffective for not raising his claims concerning his right to testify and his trial attorney's failure to present the testimony of the medical expert.
The State and defendant moved for reconsideration. In an oral decision the judge granted the State's motion and denied defendant's motion. This time, the judge rejected defendant's claim that his attorney should have presented the testimony of the expert. The judge reasoned that the expert's report "was never going to go in" because the expert "doesn't say that he could positively show something with reasonable medical probability. He's . . . stating a negative . . . and I don't think that rises to the reasonable medical probability standard." Additionally, the judge stated: "this gentleman's defense was I wasn't there; it wasn't me." The judge decided that the defense expert's testimony would not have made a difference in the outcome of defendant's trial.
The judge again rejected defendant's claim that he was deprived of his constitutional right to testify. The judge found that, based on the record, defendant had knowingly waived that right.
Following the judge's ruling, defendant appealed.
II.
Defendant argues the following points in this appeal.
POINT I
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to properly investigate and prepare an adequate defense strategy. In particular, counsel failed to call an expert witness to testify at trial concerning the cause of the victim's death.POINT II
B. Trial counsel failed to properly challenge defendant's confession.
C. Trial counsel improperly advised defendant not to testify at the Miranda hearing.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.
POINT III
THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.
POINT IV
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED.
POINT V
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE STATE'S MOTION FOR RECONSIDERATION WAS TIME BARRED UNDER R. 1:7-4(b).
POINT VI
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
POINT VII
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT VIII
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
To prove a claim that an attorney was ineffective, a defendant must establish that "counsel's performance was deficient[,]" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). Defendants are not always entitled to an evidentiary hearing on such claims.
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.
[R. 3:22-10(b).]
When considering whether a defendant is entitled to a hearing, "[a]s in a summary judgment motion, the [] judge should view the facts in the light most favorable to [the] defendant to determine whether [the] defendant has established a prima facie claim." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Here, having viewed the facts in the light most favorable to defendant, we conclude that he established a prima facie case of ineffective assistance and is therefore entitled to an evidentiary hearing.
The relevant sentence in the defense expert's report is this: "However, in view of the history and physical evidence of repeated falls in which [defendant] apparently was not involved, it cannot be stated with reasonable medical probability that he caused the fall that ultimately was responsible for her death." The judge who denied defendant's petition stated that the expert's report "was never going to go in" because the expert "doesn't say that he could positively show something with reasonable[] medical probability." The judge apparently did not understand when an expert must testify within reasonable medical probability. It also appears the judge did not understand that the purpose of the defense expert's opinion was to cast doubt on the opinions of the State's experts rather than to "positively show something with reasonable medical probability." Lastly, it appears the judge overlooked the requirement that it view the evidence in the light most favorable to the defendant when considering a PCR petition.
The principle that a medical expert may testify only to matters reasonably probable, as distinguished from possible, is not absolute. The "rule applies in cases where the doctor's opinion relates to some ultimate issue of causation, as with a cause-of-death issue in a criminal case, or with a cause-in-fact in a negligence case." State v. Smith, 262 N.J. Super. 487, 519 (App. Div.), certif. denied, 134 N.J. 476 (1993) (citation omitted); Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App. Div. 1980). However, an expert may educate a jury about "scientific, technical, or other specialized knowledge" if doing so "will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702; see also Smith, supra, 262 N.J. at 520-21. Of course, the witness must be "qualified as an expert by knowledge, skill, experience, training, or education" to provide such testimony. N.J.R.E. 702.
Similarly, in a medical malpractice action, a medical expert is not required "to state in his testimony that there was a deviation from professional standards to a 'reasonable medical probability.'" Bondi v. Pole, 246 N.J. Super. 236, 240 (App. Div. 1991). That is so because "[t]he foundation for an expert witness's opinion that there was a deviation is that the deviation was from an accepted medical standard and not simply from the expert's personal standard." Ibid.
More importantly, our Supreme Court "has long recognized that every defendant, in response to an allegation that his negligence has caused injury, possesses the right of demonstrating by competent evidence that that injury 'could' have been caused, wholly or partly, by an earlier accident or by a pre-existing condition." Davidson v. Slater, 189 N.J. 166, 187 (2007) (citing Paxton v. Misiuk, 34 N.J. 453, 460-61 (1961)). A defendant's evidence that other accidents or conditions could have caused a plaintiff's or victim's injuries, if believed, undermines the credibility of a plaintiff's expert who has testified that the defendant's conduct, within reasonable medical probability, has caused a particular injury.
We discern no significant difference between a defendant in a civil case presenting competent evidence that an injury could have been caused by some other event or condition, and a defendant in a criminal case presenting competent medical expert testimony that, due to the existence of other conditions or accidents, no expert can testify within reasonable medical probability that a particular accident caused an injury or death. When a defendant introduces such evidence, he does so not to prove an affirmative claim, but rather to attack the credibility of the opposing expert whose testimony establishes an element of a crime. Such testimony from a defense expert, if believed, can create a reasonable doubt as to that element.
Of course, a defense expert's opinion must be based on "facts or data in the particular case." N.J.R.E. 703. If not, the opinion can be stricken as a "net opinion." Nevertheless, a judge considering whether an expert's opinion constitutes a net opinion, or whether the expert's opinion is unreliable for other reasons, should not decide such questions based on a report alone, without giving the expert an opportunity to explain the basis of the opinion. Cf. Kemp ex rel. Wright v. State, 174 N.J. 412, 432-433 (2002). That is particularly so in a criminal prosecution where a premature judgment about a defense expert's opinion, based solely on assumptions derived from a report, may deprive a defendant of the opportunity to present a defense.
More importantly, here, the judge was required to view the defense expert's report in the light most favorable to defendant. Denying defendant a hearing after making adverse assumptions about the defense expert report contravenes the standard for determining when an evidentiary hearing is required in PCR cases.
Viewing the facts in this case in the light most favorable to defendant, his trial counsel's unexplained failure to present the medical expert's testimony satisfies the first Strickland prong. And, because the expert's testimony could have created a reasonable doubt as to the opinion of the State's experts, defendant also established both the second Strickland prong and a prima facie case of ineffective assistance of counsel.
We understand the judge's observation that defendant's trial strategy was to deny that he pushed the victim. However, the defense expert's opinion was not inconsistent with that strategy. And there is no evidence in the record from which the court could have concluded that defendant's denial that he pushed the victim had anything to do with counsel's decision not to call the medical expert. The court should have conducted a hearing to determine whether trial counsel was ineffective for not presenting the expert's testimony.
We do not suggest by so holding that defense counsel was in fact ineffective. That determination must be made at the evidentiary hearing. We simply hold that counsel's unexplained failure to present an expert's testimony which, if believed, would have negated an element of felony murder, entitles defendant to an evidentiary hearing on his PCR petition. Counsel's reason for not calling the expert cannot be resolved on the existing record.
Reversed and remanded for an evidentiary hearing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION