Opinion
DOCKET NO. A-0278-14T2 DOCKET NO. A-0655-14T2
05-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE A. VEGA, a/k/a KING JUNE, JOSE RAMIREZ-VEGA and JOSE A. RAMIREZ, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUAN A. ROSARIO, a/k/a JOSE GOMEZ, JUAN ROSARIO and KING BLACK ROSE, Defendant-Appellant.
Joseph E. Krakora, Public Defender attorney for appellant Jose Vega (Steven M. Gilson, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Juan Rosario (Alan I. Smith, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-12-2152. Joseph E. Krakora, Public Defender attorney for appellant Jose Vega (Steven M. Gilson, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Juan Rosario (Alan I. Smith, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
Defendants, tried together as co-conspirators, appeal from orders denying their petitions for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
There were other co-defendants who entered guilty pleas and are not the subject of this appeal.
Defendants' appeals were listed back-to-back because they raise similar issues for our review. We have consolidated the appeals to address the issues in a single opinion.
Both defendants are high-ranking members in a street gang. In February 2005, three street-level drug dealers decided to rob their supplier, defendant Jose Vega. After the robbery, Vega and Rosario decided to retaliate by calling upon other gang members to capture the robbers. A faux drug deal was arranged at which the robbers would be ambushed by members of the gang and captured. At the meeting site, an altercation broke out between the robbers and members of the gang, which resulted in one of the robbers being shot five times (the shooting victim). The shooting victim was rushed to the hospital by his co-robber, but died en route.
Also complicit in the robbery was a woman, who was not a member of the gang. Fearing that the woman would not be loyal to the gang, Rosario ordered her to be killed. Several members of the gang traveled with the woman to Paterson under the guise of cleaning her car of blood, with the ultimate goal of killing her. The gang members stabbed her approximately thirty times and ran her over with the car twice, yet she miraculously survived.
Rosario also questioned the loyalty of other gang members. Consequently, he ordered another member, who was present at the ambush, be killed.
On December 12, 2005, a Bergen County grand jury returned an indictment charging thirty-nine counts against Vega and twenty-two counts against Rosario. Defendants were tried by a judge and jury. Testimony from the woman and other gang members who pled guilty resulted in defendants' convictions.
Vega was convicted of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1); two counts of second-degree attempted kidnapping, N.J.S.A. 2C:5-1 and 2C:13-1(b); simple assault, N.J.S.A. 2C:12-1(a); second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and 2C:13-1(b)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); as well as six drug-related offenses for possession and distribution of cocaine and marijuana. Vega was acquitted of the other counts in the indictment.
Vega was convicted for reckless manslaughter as a lesser-included offense of murder.
Vega was originally charged with aggravated assault, N.J.S.A. 2C:12-1(b)(1), but was convicted of the lesser-included offense of simple assault, a disorderly-persons offense.
Rosario was convicted of second-degree reckless manslaughter, two counts of attempted kidnapping, simple assault, and conspiracy to commit kidnapping. He was acquitted of the remaining charges in the indictment.
Vega was sentenced to forty years in prison with thirty and one-half years of parole ineligibility, as well as a seventy-two month driver's license suspension. Rosario was sentenced to twenty years in prison with a seventeen-year period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendants' convictions and sentences on direct appeal. State v. Vega/State v. Rosario, Nos. A-4673- 08/A-5311-08 (App. Div. Apr. 10, 2012), certif. denied, 212 N.J. 288 (2012).
In January 2013, Vega filed a pro se petition for PCR. In May 2014, the judge conducted oral argument and issued a written opinion denying relief. Rosario filed a PCR petition in May 2013. In May 2014, the judge heard oral argument and issued a written opinion denying Rosario's petition.
On appeal, defendant Vega argues:
[POINT I]
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed to Request An Adverse-Inference Charge Resulting From the State's Prejudicial Discovery Violation.
B. Trial Counsel Failed to Have An Exculpatory Witness Testify.
Rosario raises three points on appeal:
POINT I
THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL[.]
POINT II
THE ORDER DENYING [PCR] SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION[.]
POINT III
THE CUMULATIVE EFFECT OF THE TRIAL ERRORS AND INSTANCES OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT WERE PRESENTED IN DEFENDANT'S PETITION WARRANT [PCR.]
For defendants to obtain relief based on ineffective assistance grounds, they are obliged to show not only the particular manner in which counsels' performance was deficient, but also that the deficiency prejudiced their rights to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
An evidentiary hearing should be conducted when the facts, viewed in the light most favorable to defendant, establish a prima facie showing of ineffective assistance of counsel and demonstrate a reasonable likelihood of success under the Strickland test. State v. Preciose, 129 N.J. 451, 462-63 (1992); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring a defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999).
I.
A.
Both Vega and Rosario challenge the destruction of interview notes taken by officers. Vega argues he is entitled to an evidentiary hearing because his counsel failed to request an adverse—inference charge as a result of Detective Russell Christiana, one of the lead case detectives, destroying his notes from his interview with Vega. Detective Christiana interviewed both Vega and Rosario, in addition to numerous other individuals. During the interview, Vega admitted being robbed by the victims but denied being a drug dealer, having drugs in the safe, firing a gun at the robbers, and that the victim's death was in retaliation for the robbery.
As there is significant overlap in defendants' arguments on this issue, we will address them together. Otherwise, we will address Vega's arguments in Point I and Rosario's arguments in Point II.
Rosario was interviewed by Detective Christiana and Sergeant John Haviland on February 25, 2005. The officers told Rosario he had been implicated by other individuals, but Rosario declined to cooperate and issued a blanket threat against "snitches," which was put before the jury. Sergeant Haviland authored a report, completed in March 2005, incorporating his notes from the interview. He also subsequently destroyed his notes. Rosario contends trial counsel failed to adequately examine the officers about the notes, and that the failure to do so establishes a prima facie case of ineffective assistance entitling him to an evidentiary hearing.
Our Supreme Court has unequivocally held law enforcement officers may not destroy contemporaneous notes of interviews and observations after producing their final reports, and the destruction of contemporaneous notes taken by a police officer is a discovery violation, regardless of whether the notes are destroyed pre- or post-indictment. See State v. Dabas, 215 N.J. 114, 135-38 (2013). However, this principle was entered years after defendants were tried and convicted. See State v. W.B., 205 N.J. 588, 608-09 (2011).
In State v. Cook, 179 N.J. 533, 542 n.3 (2004), the Court expressed its disapproval of destruction of interview notes, commenting in a footnote that "once each officer prepared his report, he destroyed his notes from the interrogation sessions, a practice that is apparently common, but one that we disapprove of." One year later, in State v. Branch, 182 N.J. 338, 367 n.10 (2005), the Court once again indicated that "[w]e register our displeasure that police officers engage in the seemingly routine practice of destroying their contemporaneous notes of witness interviews after the preparation of formal reports."
Later, in W.B., supra, 205 N.J. 588, the Court addressed the issue of pre-indictment destruction of notes head-on. In W.B., the investigator destroyed notes from her interviews of both the victim and the defendant after she incorporated them into her report. Id. at 607. The Court concluded definitively that such notes must be retained, holding that Rule 3:13-3, governing discovery and inspection, extended to "the writings of any police officer under the prosecutor's supervision." Id. at 607-08.
Importantly, however, the Court made clear the application of this rule would be prospective only, stating "we defer the implementation of this retention and disclosure requirement for thirty days in order to allow prosecutors sufficient time to educate police officers accordingly." Id. at 608. The Court then stated "starting thirty days from today, if notes of a law enforcement officer are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded, after conference with counsel, to the facts of the case." Id. at 608-09 (emphasis added); see also Dabas, supra, 215 N.J. at 137-38 ("We clearly signaled that the note-retention requirement would apply prospectively to pre-indictment cases beginning after the thirty-day grace period in W.B.").
In Dabas, supra, 215 N.J. at 118, the officer created notes that were destroyed over one year after the defendant's indictment. The prosecutor did not provide the defense with the notes. Ibid. The Court made clear that in Dabas, it was "not dealing with the destruction of interview notes before an indictment—the issue addressed in Cook, Branch, and W.B. In [Dabas], the prosecutor's office possessed the notes at a time when it was required to provide them to the defense in accordance with Rule 3:13-3." Id. at 119. The Court explained that Cook, Branch, and W.B. addressed a different issue, to wit the pre-indictment destruction of notes, which fell outside the purview of Rule 3:13-3(b) and (c). See id. at 138. In short, Dabas reviewed the post-indictment destruction of notes, which the Court concluded is a per se violation of Rule 3:13-3.
Considering this authority, the PCR judge concluded that Vega's argument was without merit. The judge noted that "the charge for destruction of police notes was not created and implemented until two years after [Vega's] trial" and that Dabas made clear the rule announced in W.B. was to be prospectively applied.
The judge did not err in this conclusion, as Vega was tried in 2008 and sentenced in January 2009, well before the W.B. opinion. The record indicates that Vega was interviewed on February 18, 2005 by Detective Christiana, and that the officer wrote a report and destroyed the notes thereafter. Vega was not indicted until December 12, 2005. Vega does not argue that these notes existed after the indictment. Thus, Vega fails to establish either prong of the Strickland test, and therefore is not entitled to an evidentiary hearing on this issue.
As for Rosario, Sergeant Haviland's report was prepared in March 2005, and the officer testified he destroyed the notes when he completed his report. Rosario was not indicted until December 2005. Thus, Rosario is also not entitled to an evidentiary hearing on this issue.
B.
Vega's second argument is that his trial counsel failed to present the testimony of an exculpatory witness. Specifically, Vega contends his counsel was ineffective for failing to call a co-defendant and fellow gang member at trial, who Vega claims would have provided exculpatory testimony.
"In addressing an ineffective assistance claim based on a counsel's failure to call an absent witness, a PCR court must unavoidably consider whether the absent witness's testimony would address a significant fact in the case, and assess the absent witness's credibility." State v. L.A., 433 N.J. Super. 1, 15 (App. Div. 2013) (citations omitted). The PCR court's determination of the witness's credibility is a factor in the overarching determination of "whether there is a reasonable probability that, but for the attorney's failure to call the witness, the result would have been different that is, there would have been reasonable doubt about the defendant's guilt." Id. at 15-16.
In 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. All three factors derive from the court's obligation under Strickland to consider the totality of the evidence in making its prejudice determination.
[Id. at 16-17 (citation omitted).]
The witness was a member of the gang who was called to Vega's house after Vega had been robbed by the victims. The witness took part in the plan to capture and attack the victims, and was one of the gang members who participated in the attempted murder of the woman. At the time of Vega's trial, the witness had pled guilty but had not yet been sentenced.
The judge rejected Vega's claim, concluding that the right against self-incrimination continues through sentencing and exhaustion of direct appeal, that Vega offered no proof the witness would waive this right, and that in any event, the witness's testimony would not have exonerated Vega.
The judge did not err in this determination. First, the right against self-incrimination remains intact through sentencing, even if the individual has pled guilty; the guilty plea may be withdrawn, and incriminating oneself as a witness may impact the judge's decision to accept the withdrawal of the plea. State v. Tyson, 43 N.J. 411, 416 (1964), cert. denied, 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965). "[A] witness may refuse to testify concerning the crime as to which he has been convicted, been sentenced, and even served his term, if his testimony could lead to incrimination for other crimes." Id. at 416-17 (citation omitted). So long as a defendant is "yet to be sentenced and [has not] exhaust[ed] his appellate remedies, his conviction [is] not final." State v. Nunez, 209 N.J. Super. 127, 132 (App. Div. 1986), certif. denied, 107 N.J. 628 (1987). Thus, as the witness had not yet been sentenced at the time of Vega's trial, he still had a protected right against self-incrimination. Vega has not offered any evidence that the witness would have waived that right and subjected himself to possibly incriminating cross-examination.
Even if the witness were to take the stand, his statement to the police was not exculpatory. The witness did not submit an affidavit; rather, Vega relies on the witness's custodial statements to police. The witness, when asked by police about the incident, stated that Vega told Rosario to go ahead with the planned capture, but later told Rosario to call it off because he was going to use other "goons" from Newark to carry out the kidnapping. And it was in that context that Vega, frustrated that Rosario's people carried out the attempted kidnapping, said to Rosario "what the f— wrong with you? I told you don't do that. I told you I had Newark coming to handle that." Thus, far from an exculpatory statement, read in context, the statement just elucidates that Vega originally told Rosario to have his people undertake the kidnapping, but then decided to have the individuals from Newark do it instead, and expressed his frustration to Rosario when it had already been done and things had not gone as planned. Thus, defendant's argument falls well short of meeting either prong of Strickland.
II.
Rosario raises various ineffective assistance claims as to both his trial and appellate counsel. First, in addition to arguing trial counsel was ineffective by failing to request an adverse-inference charge due to an investigating officer's destruction of his interview notes, which we have addressed, he asserts trial counsel failed to challenge his arrest, and failed to argue that the shooting victim's death was caused by another's driving him to the hospital. Second, he argues appellate counsel was ineffective for failing to raise on appeal alleged errors in the trial court's admission of hearsay statements under the co-conspirator exception, alleged errors in admitting expert testimony on the gang's structure and defendant's role in the gang, and failing to raise the issue of the judge's retention of an alleged biased juror. Finally, Rosario argues that cumulative errors entitle him to PCR.
A.
1.
Rosario argues trial counsel failed to adequately attack his arrest at the pre-trial Miranda hearing to establish why the warrant for his arrest was signed after the officers' interview.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the Miranda hearing, Sergeant Haviland testified that Rosario voluntarily came to the police department to speak with the officers. Sergeant Haviland identified himself, told Rosario he wanted to speak with him regarding the murder and attempted murder of the female victim, and that he would like to undertake the questioning in Paramus; Rosario complied. Officers Haviland and Christiana interviewed him. Sergeant Haviland testified that prior to talking to Rosario, Detective Christiana carefully read Rosario his Miranda rights, which Rosario voluntarily waived. After waiving his rights, Rosario made comments about having "snitches" targeted in jail. Sergeant Haviland testified that after getting Rosario's basic information and providing him with his Miranda warnings, he then advised Rosario that he was under arrest, and that he believed he had probable cause to arrest at that time, even in the absence of a warrant. It is undisputed that the "actual physical complaints themselves" were not drafted until after the officers spoke to Rosario.
Based on this testimony and supporting exhibits, the motion judge concluded that Detective Christiana properly provided Rosario with his Miranda rights, and that Rosario "waived those rights . . . voluntarily, intelligently, and knowingly."
During cross-examination of Detective Christiana at trial, there was a discrepancy regarding the date the actual arrest warrant was signed. Detective Christiana originally indicated that the warrant was signed on February 19, when it was actually signed on February 25.
In his review, the PCR judge found as a threshold matter that the claim was more appropriate for direct appeal, and that a Miranda hearing was held in which the judge determined that defendant knowingly and voluntarily waived his right to remain silent. Furthermore, the judge concluded that at the time of Rosario's arrest, the State had "more than enough probable cause to arrest [him]," but did not need to because Rosario voluntarily came to the police station. The judge did not err.
Sergeant Haviland testified that Rosario was under arrest after signing his Miranda warnings, which he voluntarily waived. Probable cause existed to arrest defendant, as by that point the officers had spoken with many of the other gang members, who had already implicated defendant in regards to the murder and attempted murder. See State v. Chippero, 201 N.J. 14, 28 (2009) ("For probable cause to arrest, there must be probable cause to believe that a crime has been committed and 'that the person sought to be arrested committed the offense.'" (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000))); see also State v. Basil, 202 N.J. 570, 584 (2010) ("The Fourth Amendment permits a police officer to make a warrantless arrest of a defendant in a public place provided the officer has probable cause to believe the defendant committed a crime."). Counsel was not ineffective, Rosario was provided appropriate warnings, voluntarily waived his rights, and provided statements to the police.
2.
Rosario argues trial counsel was ineffective for failing to challenge causation of the shooting victim's death. At trial, the State called retired Bergen County Medical Examiner Sunandan B. Singh, an expert in the field of forensic pathology. The expert testified that the victim had been shot five times, and that one of the shots, namely the one that entered "into the chest cavity, damaging the left lung and the heart itself," was "absolutely beyond any shadow of doubt fatal." Defense counsel did not cross-examine the expert.
Rosario also points to the testimony of the surviving victim, who drove the shooting victim to the hospital. Rosario argues that trial counsel was ineffective for failing to raise the issue of whether transporting the shooting victim to the hospital was an intervening cause of his death.
The PCR judge denied this contention. The judge noted that the driver attempted to call 9-1-1 prior to driving the shooting victim to the hospital, and when that was unsuccessful, drove the shooting victim to the hospital himself. The court additionally concluded that under prong two of Strickland, even if defense counsel had raised the issue, it would not have changed the result.
The New Jersey Code of Criminal Justice (the Code), N.J.S.A. 2C:2-3(a)(1), states that "[c]onduct is the cause of a result" when "[i]t is an antecedent but for which the result in question would not have occurred." "Under this 'but-for' test, the defendant's conduct is deemed a cause of the event if the event would not have occurred without that conduct. Conversely, a defendant's conduct is not considered a cause if the event would have occurred without it." State v. Martin, 119 N.J. 2, 11 (1990).
The second requirement is that "[t]he relationship between the conduct and result satisfies any additional causal requirements imposed by the [C]ode or by the law defining the offense." N.J.S.A. 2C:2-3(a)(2). Where, as here,
the offense requires that the defendant purposely or knowingly cause a particular result, the actual result must be within the design or contemplation, as the case may be, of the actor, or, if not, the actual result must involve the same kind of injury or harm as that designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.
[N.J.S.A. 2C:2-3(b).]
Here, there is no question that the gang member shot the victim and the victim suffered a fatal wound. As the judge noted, the driver tried to call 9-1-1, but was unsuccessful; he then drove the victim to the hospital. The victim's death as a result of the gunshot is precisely what would be expected. The jury was charged on the issue of causation, and found defendant guilty. Moreover, even if Rosario's counsel was ineffective for failing to raise this issue, he still fails to meet the second prong of Strickland, namely that but for counsel's error, the result would be different. Given the extent of the evidence in the record, Rosario, at minimum, fails to establish the prejudice prong of Strickland.
B.
1.
As to appellate counsel, Rosario first argues appellate counsel was ineffective for failing to raise on direct appeal the issue of hearsay testimony, admitted under the statements by co-conspirators exception, N.J.R.E. 803(b)(5), at trial. Specifically, Rosario points to one particular instance of "double hearsay," namely that Rosario said to another gang member and co-conspirator that he was going to kill a third gang member and co-conspirator. The third gang member testified regarding the threat on his life allegedly made by Rosario, and that his father stated individuals arrived at his house looking for him; both Vega's and Rosario's counsel objected, and Rosario's counsel moved for a mistrial, which was denied.
The judge reissued a limiting instruction emphasizing that the other crimes evidence about the murder of the woman was to be used only for consciousness of guilt, and that
The attempted murder of the woman was not the subject of this trial. It was being used as other crimes evidence to establish Rosario's consciousness of guilt in the underlying murder of the robbers. N.J.R.E. 404(b).
"[l]ikewise you heard testimony concerning a threat against [the third gang member] based upon conversations with other persons. Once again this is evidence that you have to determine, you have to judge. You determine the credibility. You determine whether you should give any weight to the testimony. Is that understood?"
On appeal, Rosario's counsel did not argue that the statement made to the third gang member that he was to be killed and the statement made by his father that there were people outside the house looking for him was improperly admitted. Vega's counsel argued "that hearsay testimony by witnesses who referred to out-of-court statements made either against him by declarants not produced for trial, or made not in the course of the conspiracy with which he was charged, denied him a fair trial." This court stated:
We reject this hearsay claim for two reasons. First, as we have already noted, the jury was repeatedly told that the evidence about the attempted murder of [the woman] could not be used against Vega.
Second, to the extent that any of the out-of-court statements, whether made on February 18, February 19 or even later, dealt with aspects of the [street-level drug-dealer] crimes, such evidence was admissible under N.J.R.E. 803(b)(5) as a statement in furtherance of a conspiracy.
. . . .
In this case, there was substantial independent evidence of the conspiracy, including testimony from [the victims]. There was also overwhelming evidence from gang members of Vega and Rosario's leadership roles throughout. But other than to complain generally about co-conspirator statements made after [the drug-dealer's] death, Vega does not specify any particular statements that he says were admitted in evidence but were not made during or in furtherance of the [street-level drug-dealers murder] conspiracy.
[Vega, supra, Nos. A-4673-08/A-5311-08 (slip op. at 61-62.]
Thus, this court was referring specifically to the statements that would be prejudicial to Vega, not to Rosario. Rosario, in this instance, did not have identical interests to Vega. This court did not specifically address the alleged problematic statements other than to say that the third gang member's testimony did not provide grounds for a mistrial as to Vega. Id. at 57. Thus, the PCR judge was incorrect to say that the appellate division addressed this issue on direct appeal. Moreover, Rosario's counsel on direct appeal should have raised this issue as it was prejudicial and, at minimum, the statement by the third gang member's father was not properly admitted.
Even assuming, however, that Rosario can meet the first prong of Strickland, given the weight of the evidence at trial implicating him in the murder, he fails to satisfy prong two of Strickland. See Fritz, supra, 105 N.J. at 52 (explaining that to satisfy prong two of Strickland, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (citation omitted)). As this court noted on direct appeal, there was "overwhelming evidence from gang members of Vega and Rosario's leadership roles throughout," separate from the particular statement at issue. Vega, supra, Nos. A-4673-08/A-5311-08 (slip op. at 62). Thus, Rosario is not entitled to an evidentiary hearing on this issue.
2.
Rosario also argues that appellate counsel was ineffective for failing to raise the issue of a juror's impartiality after one of Rosario's outbursts in the courtroom.
Rosario argues counsel was ineffective for failing to raise the issue of whether the State properly produced expert testimony regarding the organization and structure of the gang. We conclude this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). --------
During trial, Rosario had various outbursts threatening witnesses, among other remarks. The judge conducted a voir dire of each juror to determine the impact of the statement. The judge asked juror number seven if she could "continue to be a fair and impartial juror in this case, keeping an open mind about the evidence you may hear in this courtroom until the matter is concluded?" Juror number seven answered "[it is] becoming more difficult, but yes." (emphasis added). The following colloquy ensued:
THE COURT: Two, can you follow the [c]ourt's instruction that you are not to consider for any purpose in arriving at your verdict the conduct of the defendant Juan Rosario in the courtroom?The judge then asked the juror if she would continue to afford defendant the presumption of innocence, the juror responded yes. The judge then asked whether she had any biases or prejudice against defendant, to which she responded, "[n]o."
JUROR: There again it[ is] becoming more difficult because I[ am] coming in objectively and it is becoming subjective by the defendant.
THE COURT: Okay. Understanding your feelings once again I need to ask you a pivotal question. You took an oath.
JUROR: Yes.
THE COURT: Can you continue to be fair and impartial?
JUROR: I will, yes.
It is well settled that "[v]oir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and its exercise of discretion will ordinarily not be disturbed on appeal." State v. Williams, 113 N.J. 393, 410 (1988) (citation omitted).
This standard respects the trial court's unique perspective and the traditional deference we accord to trial courts in exercising control over matters pertaining to the jury. However, an appellate court is not bound by a determination when the particular circumstances present such a strong likelihood of prejudice that, as a matter of law, the juror should have been removed.
[State v. Brown, 442 N.J. Super. 154, 182 (App. Div. 2015).]
Here, the trial judge was well within his discretion in allowing juror number seven to continue. Appellate counsel was not ineffective for failing to raise this point on appeal. The judge conducted a voir dire of each juror, and juror number seven, understandably shaken by Rosario's outbursts, clearly concluded that she could remain impartial. The judge did not abuse his discretion, and therefore this claim fails to meet either prong of Strickland.
C.
As New Jersey has adopted the Strickland standard, see Fritz, supra, 105 N.J. at 58, Rosario's second point, that he was deprived the right to counsel under the Sixth Amendment, fails. Moreover, as there was no error, defendant's final argument that cumulative errors warrant PCR also fails.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION