STATE OF NEW JERSEY VS. AGUSTIN GARCIA (00-06-1368, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3575-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AGUSTIN GARCIA,
a/k/a AUGUSTIN GARCIA,
and AUGUSTINE GARCIA,
Defendant-Appellant.
________________________
Submitted September 16, 2021 – Decided October 13, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 00-06-1368.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel; Catherine A. Foddai, Legal Assistant, on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Twenty years ago, in 2001, a jury convicted defendant of murdering his
former girlfriend on the day she was to marry another man. Defendant shot her
at close range in her home just before the wedding ceremony. The shooting was
witnessed by several guests and family members and recorded by a videographer
who was filming the events of the day. Following the rejection of his arguments
on direct appeal and the rejections of extensive arguments made in four petitions
for post-conviction relief (PCR), defendant moved to compel production of the
entire video of the wedding day and the portion of the video presented at his
trial. He asserted that new technology might allow him to enhance the video
and the video might support his contention that he acted in self-defense. The
motion court denied that motion, reasoning that all arguments about the video
and defendant's related self-defense claim had been addressed and resolved in
his prior direct appeal and the orders and appeals concerning his PCR petitions.
Defendant now appeals from a January 25, 2019 order denying his motion to
compel. We affirm.
A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1)
and (2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A.
A-3575-18
2
2C:39-4(a); third-degree possession of a handgun without the required permit,
N.J.S.A. 2C:39-5(b); and four counts of third-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a). Following the merger of certain convictions,
defendant was sentenced to life in prison with a mandatory thirty years of parole
ineligibility.
In 2004, we affirmed defendant's convictions for murder and unlawful
possession of a firearm but vacated his convictions for endangering the welfare
of a child. State v. Garcia, No. A-3939-01 (App. Div. May 11, 2004). The
Supreme Court denied certification. 181 N.J. 545 (2004).
Thereafter, defendant filed four petitions for PCR. All those petitions
were denied, and we affirmed the denial of the first three PCR petitions. State
v. Garcia, No. A-5437-06 (App. Div. Nov. 6, 2009); State v. Garcia, No. A-
3198-09 (App. Div. Aug. 12, 2011); State v. Garcia, No. A-2764-10 (App. Div.
May 16, 2013).
Separately, defendant filed requests under the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, and the common law seeking to compel the
production of the video and other documents. The denial of the request under
OPRA and the common law was upheld by the trial court, and we affirmed that
A-3575-18
3
decision. Garcia v. Bergen Cnty. Prosecutor's Off., Nos. A-3085-16, A-4501-
16 (App. Div. May 17, 2019).
In his direct appeal, defendant made several arguments about the
admissibility of the wedding video and the playing of portions of that video at
his trial. In his four petitions for PCR, defendant repeatedly argued that his trial
counsel had been ineffective in not challenging the admission of the wedding
video based on tampering and in failing to retain an expert to examine and
challenge the video.
On this appeal, defendant claims that he is entitled to discovery because
an examination of the videotape might support his argument that he was attacked
and acted in self-defense. His current counsel submitted a brief making one
argument:
The trial court erred in denying Mr. Garcia's motion to
compel production of discovery.
Defendant submitted his own brief in which he argued:
A. [The] January 25, [2019] adverse order flagrantly
violate[s] appellant['s] constitutional rights to due
process of law, because it is capricious, unreasonable
and unsupported by sufficient competent evidence in
the record, warranting reversal and remand in best
interest of justice.
B. [The] judge [] entered orders dated August 25,
2016, March 3, 2017, and March 28, 2017, without any
A-3575-18
4
participation of already assigned counsel, subjecting
appellant to fundamental [State v. Cerbo, 78 N.J. 595,
605, 607 (1979)] injustice, violating his right to counsel
guaranteed by the Sixth and Fourteenth Amendments
[to the] U.S. Constitution.
The records on the prior proceedings establish that defendant was
provided with a copy of the video before his trial in 2001. His arguments that
the video was tampered with or altered have been repeatedly rejected.
Nevertheless, defendant contends without any support that technological
enhancements may reveal something in the video that would support his self -
defense argument. That contention is undercut by the evidence at trial , which
included testimony from eyewitnesses who testified that there was no struggle
and that defendant pulled out a gun and shot the victim multiple times at close
range.
We agree with the motion judge that reproducing the video could not
support any new argument that would not be procedurally barred and that any
issue concerning the video could not constitute newly discovered evidence. The
entire videotape was available to defendant and his counsel before trial and was
also available during defendant's direct appeal and his first PCR petition.
Furthermore, as already pointed out, defendant's arguments about altering
or tampering with the wedding video were raised and rejected in his prior direct
A-3575-18
5
appeal and in his four prior PCR petitions. While New Jersey courts have the
inherent power to order discovery when justice requires it, See State v. Marshall,
148 N.J. 89, 270 (1997), defendant's motion did not support an inv ocation of
that extraordinary remedy.
Affirmed.
A-3575-18
6