STATE OF NEW JERSEY VS. GERMANIA TERRERO(09-07-1251, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1635-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GERMANIA TERRERO, a/k/a XIOMARA,
Defendant-Appellant.
___________________________________________________
Submitted May 9, 2017 – Decided June 8, 2017
Before Judges Ostrer and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 09-07-1251.
Joseph E. Krakora, Public Defender, attorney
for appellant (John V. Molitor, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Frances Tapia Mateo,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Germania Terrero, along with Kristian Molina and
Robert Santana, were indicted for murder and related charges in
connection with the death of Terrero's paramour, Aracelio Lopez.
Terrero was tried and convicted by a jury of the lesser included
offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-
4a(1); two counts of first-degree felony murder, in the course of
a robbery and in the course of a burglary, N.J.S.A. 2C:11-3a(3);
first-degree robbery and conspiracy to commit first-degree
robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; second-degree
burglary and conspiracy to commit second-degree burglary, N.J.S.A.
2C:18-2 and N.J.S.A. 2C:5-2; and related theft and weapons charges.
She was sentenced to thirty years in prison. We affirmed the
conviction. State v. Terrero, No. A-0399-11 (App. Div. June 4,
2013). Her timely filed post-conviction relief petition was denied
by the trial court without an evidentiary hearing.
On appeal, defendant raises the following arguments:
I. THIS COURT SHOULD REVERSE THE LAW
DIVISION'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF BECAUSE
DEFENDANT'S TRIAL ATTORNEY WAS INEFFECTIVE FOR
FAILING TO ADVISE DEFENDANT TO TESTIFY.
II. THIS COURT SHOULD REVERSE THE LAW
DIVISION'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF BECAUSE
DEFENDANT'S TRIAL ATTORNEY WAS INEFFECTIVE FOR
FAILING TO CONDUCT AN APPROPRIATE PRE-TRIAL
INVESTIGATION.
III. THIS COURT SHOULD REVERSE THE LAW
DIVISION'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF BECAUSE
DEFENDANT'S TRIAL ATTORNEY WAS INEFFECTIVE DUE
TO A LACK OF COMMUNICATION.
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We disagree and affirm the denial of defendant's petition.
We summarize the facts pertinent to our present review.1
Lopez hired defendant as a waitress at his restaurant. They
started a romantic relationship about a year later. As the
relationship deepened, defendant and her children moved in with
Lopez. She assumed a more prominent role in the management of the
restaurant. Lopez even provided for defendant in his will. About
seven years after it started, defendant strayed from the
relationship with Lopez and became sexually active with Molina.
A rift between defendant and Lopez developed, but defendant
continued in her position at the restaurant.
Molina met Santana around the same time he met defendant.
The two men became fast friends. Molina confided in Santana that,
in February 2008, defendant gave him the key to Lopez's apartment,
and that he used the key to burgle the residence. He also told
Santana that he was upset because Lopez was mistreating defendant.
Molina tried to recruit men, including Santana, to assault
Lopez or rob his restaurant, or both. On March 1, 2008, Molina
told Santana about a plan he and defendant formulated to rob Lopez
at his restaurant. On March 3, Santana met Molina at his
apartment where Molina related that he had spoken to defendant and
1
We detailed the facts of this case in our decision affirming
defendant's conviction. State v. Terrero, supra, slip op. at 2-3.
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laid out the criminal plan to Santana. Defendant's role was to
ensure the restaurant door was unlocked and that the restaurant
would be empty. She also arranged for Lopez to be in the kitchen
so that he did not see Molina and Santana enter the restaurant.
Molina and Santana drove to the restaurant and, after several
calls from defendant, entered through the front door unseen by
Lopez, who, as planned by defendant, was in the kitchen. Molina
attacked Lopez as he exited the kitchen. Molina's assault
continued unabated, despite efforts by Santana and defendant to
intervene.
Santana left the restaurant. Thirty seconds later, after
taking Lopez's watch and jewelry, Molina followed. Santana saw a
knife in Molina's possession. Molina told Santana that he had
stabbed Lopez.
Defendant dialed 911, but waited fifteen minutes after the
attack to call. She gave scant information to the dispatcher and
did not request an ambulance. Defendant talked to the police when
they arrived. She did not reveal that she knew the perpetrators
and falsely described them to the police. She also gave police
fabricated information about the robbers' point of entry into the
restaurant.
Molina and Santana fled New Jersey. Molina eventually took
refuge in Venezuela. Lopez succumbed to complications from the
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stab wound inflicted by Molina and died in the hospital two weeks
after the attack. After dogged police work, Santana was arrested.
He pleaded guilty to first-degree robbery and testified for the
State at trial.
I.
Since the trial court did not conduct an evidentiary hearing
relating to the issues raised in defendant's PCR petition, our
review of the factual inferences drawn by the court from the record
is de novo. State v. Blake, 444 N.J. Super. 285, 294 (App. Div.
2016) (citations omitted). Likewise, we review de novo the trial
court's legal conclusions. Ibid.In order to establish a case of ineffective assistance of
counsel, defendant must demonstrate a reasonable likelihood of
success under the two-pronged test established by Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 698 (1984), and adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). A defendant must first show that
counsel was deficient or made egregious errors, so serious that
counsel was not functioning effectively as guaranteed by the Sixth
Amendment of the United States Constitution. Strickland, supra,466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A
defendant must also demonstrate that there exists "a reasonable
probability that, but for counsel's unprofessional errors, the
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result of the proceeding would have been different." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698. There is a strong
presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Further, because prejudice is not presumed, Fritz, supra, 105 N.J.
at 60-61, defendant must establish "how specific errors of counsel
undermined the reliability of the finding of guilt." United States
v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80
L. Ed. 2d 657, 668 n.26 (1984).
II.
Defendant claims counsel was ineffective because he did not
advise her to testify at trial. At the conclusion of all other
testimony, the trial judge made clear to defendant that the
decision to testify was hers alone. He also advised her, verbatim,
of the instruction that he would give to the jury if she chose not
to testify, and she chose to have the instruction included in the
final charge. As the court was going to recess, the judge offered
defendant the opportunity to consult with counsel over the weekend
about her choices. Defense counsel indicated that defendant did
not need the time to confer because they had extensive prior
discussions about defendant's option to testify. Defendant told
the court she would accept her attorney's advice and would not
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testify. After the judge, again, reminded her it was her
preference, not counsel's, defendant said, "I know it's my
decision."
Defendant made the tactical decision not to take the stand
with full knowledge of the consequences of that choice. The PCR
court found that defendant "did not show any signs of
dissatisfaction with [counsel's] advice or unwillingness to follow
it." When a defendant knowingly, voluntarily and intelligently,
with the advice of counsel, exercises her right not to testify,
she must bear the consequences of that tactical decision. State
v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988).
Defendant argues that the case should be remanded for an
evidentiary hearing so trial counsel can explain why he failed to
advise her to testify in her own defense. An evidentiary hearing
should be held only if a defendant presents "a prima facie claim
in support of post-conviction relief." R. 3:22-10; State v.
Preciose, 129 N.J. 451, 462 (1992). In order to establish a prima
facie case, defendant must demonstrate "the reasonable likelihood
of succeeding under the test set forth in Strickland v.
Washington." Id. at 463. Merely raising a claim for post-
conviction relief does not entitle the defendant to an evidentiary
hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.),
certif. denied, 162 N.J. 199 (1999). A "defendant must allege
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specific facts and evidence supporting his allegations," State v.
Porter, 216 N.J. 343, 355 (2013), and "do more than make bald
assertions that he was denied the effective assistance of counsel."
Cummings, supra, 321 N.J. Super. at 170. Petitions must be
"accompanied by an affidavit or certification by defendant, or by
others, setting forth with particularity the facts that he wished
to present." State v. Jones, 219 N.J. 298, 312 (2014).
Defendant did not proffer what she would have said if she
testified. As such, she did not establish a prima facie case that
her attorney's advice about testifying was a serious error that
undermined her Sixth Amendment right to counsel. Absent such
proof, an evidentiary hearing is not warranted.
Even if counsel's advice was deficient, defendant failed to
show that she was prejudiced by counsel's recommendation. If she
took the stand to refute the evidence of her complicity with Molina
and Santana, her aim would have to have been to prove that she had
no knowledge of the plan to rob or kill Lopez, or both.
Trial counsel presented a panoply of arguments during
summation contraindicating defendant's involvement in the planned
crimes. No witness testified that defendant knew what Molina was
going to do. Santana did not know what plans Molina made with
defendant. The persons solicited by Molina and Santana to harm
the victim did not know defendant. Counsel refuted Santana's
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testimony that the murder was planned in advance by Santana's
admission that he did not know about the plan until 1:45 a.m. on
the morning of the crime. There was no evidence that defendant
was going to receive any proceeds from the robbery because Santana
and Molina were going to share the spoils equally. Defendant
cooperated with the police by giving a statement immediately after
the incident. Santana and Molina fled; defendant stayed in New
Jersey and went to the victim's hospital bedside after the crime.
The jury rejected those assertions.2 Defendant failed to show
that there was a reasonable probability that the result would have
been different if she testified. Strickland, supra, 466 U.S. at
693-95, 104 S. Ct. at 2067-68, 80 L. Ed. 2d at 697-98.
III.
Defendant also argues her trial counsel failed to conduct "an
appropriate pre-trial investigation." Her claim of ineffective
assistance is based on counsel's failure to hire an investigator
to find Molina. Molina, by all accounts, fled to Venezuela.
Although defendant contends Molina would have "absolved" her at
trial, she did not submit an affidavit, certification or other
proof to support that bald-faced assertion. Jones, supra, 219
2
The ample evidence that supported the jury's finding that
defendant knew of or planned the attack on Lopez, or both, was set
forth in our decision on direct appeal. Terrero, supra, slip op.
at 5-7.
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N.J. at 312; Cummings, supra, 321 N.J. Super. at 170. She made
no proffer as to what Molina would have said to an investigator.
She presented no proof Molina would have returned to New Jersey
to testify.3 Again, she failed to establish a prima facie case of
ineffective assistance.
Assuming, arguendo, that counsel was ineffective because he
failed to hire an investigator, defendant failed to demonstrate a
reasonable probability the result would have been different if he
did. Strickland, supra, 466 U.S. at 693-95, 104 S. Ct. at 2067-
68, 80 L. Ed. 2d at 697-98; Fritz, supra, 105 N.J. at 60-61. The
trial judge found there was no likelihood an investigator would
have been able to find Molina, a fugitive in a foreign land that
does not have an extradition treaty with the United States. We
agree. It is improbable that Molina, who is said to have inflicted
a twelve to fifteen inch deep stab wound that exposed the murdered
victim's intestines, would have left the safe haven of Venezuela
and returned to exonerate defendant, knowing he would face a murder
charge.
Again, defendant demands an evidentiary hearing so trial
counsel can testify why he did not try to contact Molina. Post-
3
Defendant has not indicated how Molina's hearsay statement to an
investigator would have been admissible if Molina did not appear
in court.
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conviction relief applications are not fishing expeditions. State
v. Marshall, 148 N.J. 89, 269-70, cert. denied, 522 U.S. 850, 118
S. Ct. 140, 139 L. Ed. 2d 88 (1997) ("[W]e note that PCR 'is not
a device for investigating possible claims, but a means for
vindicating actual claims.'") Defendant, whose unsupported
allegations do not present a prima facie case, may not use an
evidentiary hearing to explore this issue.
IV.
Lastly, defendant claims ineffective assistance of counsel
because of "a lack of communication." She claims that, despite
counsel's efforts to converse with her through an interpreter,
defendant had difficulty understanding the interpreters,
"presumably due to differences in education and dialect."
Defendant claims she was not adequately informed of the State's
evidence against her because of the lack of proper interpretation.
As the trial judge noted, defendant did not specify "any
particular incident or factual support that demonstrate[d] her
inability to communicate with trial counsel via the Spanish
translators"; nor did she identify the communications that she did
not understand. Moreover, the trial judge found that defendant
had no problem understanding the court interpreters utilized over
the course of the long trial, both in the courtroom and during
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breaks when trial counsel spoke with his client utilizing the
court interpreters.
Further, defendant did not indicate how she was prejudiced
by the lack of communication with counsel. She did not show a
reasonable probability that the results of the trial would have
been different if proper translation was accomplished. These are
more unsupported allegations that meet neither prong of the
Fritz/Strickland standard. Strickland, supra, 466 U.S. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.
at 58.
Affirmed.
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