Opinion
DOCKET NO. A-2750-12T1
08-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL ROMERO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, 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 a 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven, and Carroll.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 (Abby P. Schwartz, 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 a pro se supplemental brief. PER CURIAM
Defendant Michael Romero 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, Romero 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.
Romero and co-defendants Jesus Rodriguez (Rodriguez), Luis Manso, Jose Antonio Perez, and Charles Byrd were tried jointly between January 24 and March 17, 2000. Romero was convicted on all counts. He received an aggregate sentence of incarceration for life.
Romero 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 charge overall; 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 Ford 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 period of 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.
Romero filed his PCR petition in November 2004. His principal allegation was that he had received constitutionally ineffective assistance of counsel, including claims that his trial attorney failed to pursue a Brady claim when he did not retain a computer expert to try to recover the lost portion of a witness statement and did not advise him of his constitutional right to testify at trial.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The PCR judge held an evidentiary hearing on Romero's PCR petition, as well as those filed by Manso, Rodriguez, and Perez, on three days between November 22, 2011, and April 11, 2012. In a written decision and an order dated January 7, 2013, the PCR judge denied relief and dismissed Romero's petition. He reached the same result with respect to the petitions filed by the other three defendants. This appeal followed.
II.
Romero raises the following issues on appeal:
[ROMERO] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO COUNSEL, A FAIR TRIAL, AND DUE PROCESS.
In a pro se reply letter brief, Romero argues:A. The Brady Violation.
B. Various Ineffective Actions by Counsel Resulted in [Romero] Being Denied the Right to Counsel.
THE RESPONDENT'S BRIEF IMPERMISSIBLY SEEKS TO REST ON BASELESS ASSERTIONS OR DENIALS.
"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 turn first to Romero's contention that his trial attorney was ineffective in failing to retain a computer expert to examine the State's computer hard drive on which Diaz's statement to the police was stored. Although the claim was raised in the petition, it was not, as the PCR judge noted, "touched upon during the plenary hearing."
In addition, Romero did not raise the alleged Brady violation on direct appeal.
During Diaz's testimony at trial, the prosecutor alerted the judge to the fact that he was unable to find a portion of Diaz's statement and had "the computer expert checking the hard drive." After a brief recess, the prosecutor reported the following:
I checked with the people responsible for taking the statement, I also checked with our computer people downstairs. We have an individual who's a major information system director . . . . Whatever was deleted from that statement is deleted forever. We checked, he explained to me, the hard drive. He checked a couple ways, which were the only ways he was aware of that we could possibly retrieve that. What comes up is exactly what I have and what counsel have. So it will not be retrieved in the future and that's where we are.
Romero contends that the failure to produce the entire statement was a Brady violation and that his trial attorney was constitutionally ineffective because he did not obtain his own expert to examine the hard drive in an effort to retrieve the missing section. Because John Hardaker, Romero's trial attorney, was deceased at the time of the hearing, the PCR judge did not have the benefit of his testimony on the issue.
The State has a "constitutional obligation to provide criminal defendants with exculpatory evidence in the State's possession." State v. Marshall, 148 N.J. 89, 154, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing State v. Knight, 145 N.J. 233, 245-46 (1996)). "[T]he suppression by the prosecution of evidence favorable to an 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." Knight, supra, 145 N.J. at 245 (quoting Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218) (internal quotation marks omitted).
Thus, the question is "whether evidence is sufficiently 'material' to require its timely disclosure to the defendant." Id. at 246. Material evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984). See also State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000). "[R]egardless of the specificity of the defendant's request, evidence is material for Brady purposes if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Marshall, supra, 148 N.J. at 155 (citation and internal quotation marks omitted). "A 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome.'" State v. Martini, 160 N.J. 248, 269 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).
The PCR judge made the following findings with respect to Romero's claim:
This record does not support Romero's assertions, nor [do] the facts as presented constitute a Brady violation. As a consequence, the criticism of defense counsel for not "moving for an independent investigation of the State's computer hard drive" is frivolous. In short, there is a dearth of information that the "lost" evidence constituted the suppression of favorable evidence or testimony.
Our review of the record convinces us that there was no evidence to suggest that the State deliberately lost or destroyed evidence. The prosecutor's explanation, which detailed the State's efforts to find the deleted portion of the statement, did not suggest, let alone establish, bad faith on the State's part. Romero failed to offer testimony or evidence to substantiate that claim. He also presented no evidence that the missing section would have been recoverable by another expert.
In addition, Romero failed to establish that there was "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Marshall, supra, 148 N.J. at 155 (citation and internal quotation marks omitted). There is nothing in the record to suggest that the missing portion of the statement would have exculpated Romero or aided his defense.
Romero failed to establish that Hardaker was ineffective. He has also failed to establish the second prong of the Strickland test, because he has not demonstrated how the missing part of Diaz's statement would have aided his defense even if a computer reconstructionist could have recovered it. Bald assertions are insufficient to establish claims of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Consequently, the PCR judge did not err in denying relief on this issue.
B.
We turn next to Romero's contention that Hardaker was constitutionally ineffective because he did not inform Romero about the State's plea offer or discuss his sentencing exposure.
To establish ineffective assistance of counsel in this context, Romero is required to demonstrate that he would have accepted the plea offer if he had been aware of his sentencing exposure, and that his guilty plea would have been accepted by the trial judge. Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398, 407 (2012).
In State v. Taccetta, 200 N.J. 183, 195 (2009), the Supreme Court held that "[t]he notion that a defendant can enter a plea of guilty, while maintaining his innocence, is foreign to our state jurisprudence" and provides no basis for PCR based on ineffective assistance of counsel. "Even if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so. No court may accept such a plea." State v. Smullen, 118 N.J. 408, 415 (1990). A guilty plea should not be accepted unless, among other things, "there is a factual basis for the plea and that the plea is made voluntarily." R. 3:9-2.
In rejecting this claim, the PCR judge relied on Romero's testimony at the PCR hearing that, at the time the plea discussions were taking place, he was maintaining his innocence. In addition, the PCR judge found Romero's testimony that he was not told about his possible sentencing exposure to be "specious." The judge credited the testimony of Paul Feinberg, Rodriguez's trial attorney, that potential pleas were discussed at a meeting among the defendants and their attorneys and that the discussion included a discussion of the defendants' sentencing exposure.
For the reasons outlined above, we find no error in the PCR judge's rejection of Romero's claim on this issue.
C.
We next consider Romero's argument that his trial attorney was constitutionally ineffective because he failed to investigate the witnesses Romero identified.
It is well established that, "[i]n matters of trial strategy, we accord great deference to the decisions of counsel." State v. Biegenwald, 126 N.J. 1, 56 (1991).
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.Accord State v. Cooper, 410 N.J. Super. 43, 57-58 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).
[Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.]
When a defendant asserts that trial counsel failed to investigate the case adequately, the defendant "'must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Porter, 216 N.J. 343, 353 (2013) (quoting Cummings, supra, 321 N.J. Super. at 170). Additionally, "[i]n considering the impact of the absent witness, a court should consider: '(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution.'" State v. L.A., 433 N.J. Super. 1, 16-17 (App. Div. 2013) (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996), cert. denied, 520 U.S. 1178, 117 S. Ct. 1453, 137 L. Ed. 2d 558 (1997)).
According to Romero, he met with Hardaker "[a]bout four times" while incarcerated. During those meetings, he asked Hardaker to call the following witnesses on his behalf: Edwin Diaz, Eli Torres, Richard Rodriguez, Rajabzaden, Edwin Morrea, Miguel Costa, and someone known as "Sorano." With respect to Edwin Diaz and Rajabzaden, Romero claimed Hardaker told him that he could not call them because "they took a neutral plea" that precluded their testimony altogether. Romero testified that his understanding was reinforced by a March 22, 2005 letter from Edwin Diaz stating that he could not testify.
Sean McGovern, who was Rajabzaden's trial counsel and who negotiated his plea agreement, testified at the hearing that his client's plea agreement included the following language: "Prosecutor has agreed to recommend 25 years with 85 served before parole. No testimony. Truthful factual basis." McGovern explained that Rajabzaden wanted the "best deal," but one that did not require him to testify for the State. McGovern explained that "no testimony" did not mean that Rajabzaden was precluded from testifying for or against any of the defendants. When Rajabzaden was called to testify at the PCR hearing, he refused to answer questions, and instead pled the Fifth Amendment.
John Dell'Italia, who represented Edwin Diaz at trial and negotiated his plea agreement, testified that "[o]ne of the main things in the agreement was [that] it was not necessary that he testify against any of the co[-]defendants but what he did give . . . [was] a neutralizing statement." Dell'Italia described what that meant:
In [Edwin Diaz's] factual basis during the course of his allocution he would discuss the involvement of himself and the other co[-]defendants in the offense but it was understood between . . . the Prosecutors on the case[] that my client would not be called to testify at trial against any of the co[-]defendants.Dell'Italia testified that no one told Edwin Diaz that he was prohibited from testifying for defendants. In fact, Dell'Italia testified that he explained to Edwin Diaz that his credibility would likely be impugned on cross-examination if he chose to testify for the defense.
The PCR judge found that the record did not support Romero's assertion that the State conditioned Edwin Diaz's or Rajabzaden's plea on their agreeing not to testify for the defense. That finding is supported by the testimony given by McGovern and Dell'Italia. Romero's assertion that Rajabzaden would have been willing to testify on his behalf at trial was totally undercut by the fact that he refused to testify at the PCR hearing. Dell'Italia's testimony that he did not tell Edwin Diaz not to testify, but that he advised Edwin Diaz his credibility would be impugned if he chose to testify, undercuts Romero's assertion otherwise. We note that Edwin Diaz did not testify at the PCR hearing.
None of Romero's other proposed witnesses testified at the PCR hearing. We find no certifications in the record concerning how they would have testified or how it would have changed the result at trial. As the PCR judge noted, the decision to call witnesses at trial is a matter of trial strategy. That would be particularly true of co-defendants who had pled guilty and with whom other defense counsel would be familiar.
Consequently, we find no error in the PCR judge's rejection of Romero's claims concerning this issue.
D.
Finally, we turn to Romero's argument that his trial attorney was constitutionally ineffective because he was not fully informed about his right to testify at trial.
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.
Romero testified that he told Hardaker three times that he wanted to testify, and that Hardaker replied that he would get back to him. Romero further testified that he did not understand that it was his right to testify. According to Romero, had he testified, he would have admitted that a Latin Kings meeting occurred at his home on the night of the killings, but that he did not leave his house or participate in or commit any crimes that followed the meeting. On cross-examination, Romero acknowledged his prior robbery conviction and the fact that Hardaker had cross-examined the witnesses who had testified against him with respect to their prior convictions.
Neither of the two defense attorneys who testified at the PCR hearing had a present recollection of discussing the right to testify with his client or of hearing it having been discussed during any group defense meeting. We note, however, that the trial took place in 2000 and the PCR hearing in 2011. Andrew Rojas, who represented Perez, testified that he "generally" informed his clients that whether they would testify was "their prerogative" and not something he controlled. He added: "Judge, while I do not have an independent recollection, I would be shocked if I had not spoken to Mr. Perez about this." Feinberg testified 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." He also had no independent recollection of doing so with Rodriguez. He did acknowledge, however, that, although he "routinely" asked the trial judge to voir dire his client on the issue, he had not done so in this case.
The trial record reflects that the trial judge asked all counsel whether they wanted her to read the election-not-to-testify charge as part of her final instructions. Byrd's attorney responded that he did. The remaining defense attorneys, including Hardaker, did not respond either way. The trial judge gave the charge.
In his opinion, the PCR judge concluded that the record was "devoid of any voir dire by the trial court or representations by defense counsel regarding defendants['] 'right to testify.'" He noted that the trial judge gave the election-not-to-testify charge in her final jury instructions, and explained its significance to his decision.
The first sentence [of the charge] reads — "Now, in this case, the defendants have chosen not to be witnesses." Based upon that instruction, two clear and irrefutable facts emerge. First, defendants were advised of their right to offer testimony, but declined; and second, defense counsel and defendants communicated to the trial judge their collective and individual approval of the charge. Indeed, this conclusion, predicated on the total circumstances described in the record, is bolstered by the pertinent case law. . . .With respect to the second Strickland prong, the judge did not present a separate discussion as to Romero. Instead, he referred to his right-to-testify analysis in the Manso portion of his opinion, stating that "[t]he analysis engaged in heretofore has equal force and effect when applied to Romero."
Further support for this determination is reflected in the comments of Andrew Rojas and Paul Feinberg, defense counsel for Jose Perez and Michael Romero [sic]. . . . In
short, each attorney had no independent recollection of consulting with their respective clients or having colloquy with the court after twelve plus years, but concluded they would have engaged in an advantage/disadvantage balancing process with each defendant. . . .
In the Manso portion of the opinion, the judge explained his reasons for finding that the second Strickland prong had not been established as follows:
The threesome who did testify at the PCR hearing [Perez, Manso, and Romero] avoided providing details and merely indicated that the outcome, if he had testified, would have been favorable to him. The gist of their protestations is that the state's witnesses, including four Latin King members who became cooperating witnesses, were untruthful. As to each petitioner, they have [fallen] woefully short of sustaining their burden that the trial result would be different.
Having reviewed the record, we are satisfied that the PCR judge's conclusion that Romero was advised of his right to testify finds sufficient support in the record. It is implicit in the judge's opinion that he did not credit Romero's testimony that he and Hardaker never had a substantive discussion concerning his wish to testify.
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. --------
In addition, even if Hardaker was somehow deficient, there is no basis to find that there was "a reasonable probability that, but for [his] unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 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).
Romero had a criminal record and would have been cross-examined on that basis. We conclude that Romero's proposed testimony, that he merely provided a venue for the Latin Kings' meeting on June 29, 1998, but had no other role, would not have been at all believable and would have opened him up to a vigorous cross-examination about the Latin Kings, its workings, the alleged drive-by shooting at Romero's house the day before the meetings, how much he knew about the plan agreed upon at his house, and what he did and did not do that night. His testimony would have been of highly questionable value in light of his record, and would most likely have been counterproductive.
Consequently, we find no error in the PCR judge's determination that Romero was not entitled to relief on this issue.
E.
Having reviewed the remainder of Romero'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).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION