STATE OF NEW JERSEY VS. FREDERICO BRUNO (13-02-0400, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0144-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FREDERICO BRUNO,
Defendant-Appellant.
_______________________
Submitted February 22, 2021 – Decided March 9, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 13-02-0400.
Joseph E. Krakora, Public Defender, attorney for
appellant (John V. Molitor, Designated Counsel, on the
briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant appeals from a June 25, 2019 order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. Defendant
contends his trial and appellate counsel rendered ineffective assistance. Judge
John A. Young entered the order under review, thoroughly considered the issues,
and rendered a twenty-page written decision.
Defendant broke into an apartment where his three-month-old son, the
son's mother, and the mother's friend resided. Defendant brought a meat cleaver
into the apartment, brandished it, and slashed the friend's face and arm. The
mother, who was in the same area, tried to protect the son, but defendant
threatened to kill her, punched her in the face, and attempted to take the son.
The violence continued in the apartment. Video footage captured the mother
and son going through a window and hitting the ground. Thereafter, defendant
found them and struck the mother with a chair, which was also captured on
video. Tragically, the son died. In the apartment, the police located the meat
cleaver that defendant utilized, and on the roof, they found gloves worn by
defendant during the attacks.
A grand jury indicted defendant with first-degree murder (the child),
N.J.S.A. 2C:11-3(a)(1) or (a)(2) (Count One); first-degree felony murder (the
child), N.J.S.A. 2C:11-3(a)(3) (Count Two); second-degree burglary, N.J.S.A.
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2C:18-2 (Count Three); first-degree attempted murder (the mother and friend),
N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Counts Four and Five); second-degree
aggravated assault (the girlfriend and the friend), N.J.S.A. 2C:12-1(b)(1)
(Counts Six and Seven); fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d) (Counts Eight, Ten and Twelve); third-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Counts Nine, Eleven
and Thirteen); second-degree witness tampering, N.J.S.A. 2C:28-5(a) (Count
Fourteen); third-degree endangering an injured victim, N.J.S.A. 2C:12–1.2
(Counts Fifteen, Sixteen and Seventeen); second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a) (Count Eighteen); and fourth-degree
obstructing the administration of justice, N.J.S.A. 2C:29-1 (Count Nineteen).
On Count One, the jury found defendant guilty of first-degree aggravated
manslaughter of the child. The jury then found him guilty on Counts Two
through Eighteen. We upheld the convictions, State v. Bruno, No. A-0435-15
(App. Div. Nov. 29, 2017), and the Supreme Court denied certification, State v.
Bruno, 235 N.J. 399 (2018).
On appeal, defendant raises the following arguments:
POINT I
THIS COURT SHOULD REVERSE THE [PCR
JUDGE'S] DECISION TO DENY THE
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DEFENDANT'S PETITION FOR [PCR] WITHOUT
AN EVIDENTIARY HEARING BECAUSE THE
DEFENDANT ESTABLISHED A PRIMA FACIE
CLAIM THAT HIS TRIAL COUNSEL WAS
INEFFECTIVE WHEN HE DID NOT CALL
DERMAINE SCOTT AS A WITNESS[.]
POINT II
THIS COURT SHOULD REVERSE THE [PCR
JUDGE'S] DECISION TO DENY THE
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AN EVIDENTIARY HEARING BECAUSE THE
DEFENDANT ESTABLISHED A PRIMA FACIE
CLAIM HIS TRIAL COUNSEL AND APPELLATE
COUNSEL WERE INEFFECTIVE FOR FAILING TO
APP[R]OPRIATELY ADDRESS ISSUES
CONCERNING THE DEFENDANT'S RIGHT TO AN
IMPARTIAL JURY[.]
A. THE DEFENDANT'S TRIAL COUNSEL
SHOULD HAVE DEMANDED THAT THE
TRIAL [JUDGE] EXCUSE JUROR NUMBER
[FIVE] AND SHOULD HAVE ASKED FOR A
VOIR DIRE OF THE REMAINING JURORS
AND THE DEFENDANT'S APPELLATE
COUNSEL SHOULD HAVE RAISED THESE
ISSUES ON APPEAL[.]
B. THE DEFENDANT'S TRIAL COUNSEL
SHOULD HAVE DEMANDED THAT THE
TRIAL [JUDGE] EXCUSE JUROR NUMBER
[EIGHT] AND SHOULD HAVE ASKED FOR A
VOIR DIRE OF THE REMAINING JURORS
AND THE DEFENDANT'S APPELLATE
COUNSEL SHOULD HAVE RAISED THESE
ISSUES ON APPEAL[.]
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POINT III
THIS COURT SHOULD REVERSE THE [PCR
JUDGE'S] DECISION TO DENY THE
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AN EVIDENTIARY HEARING BECAUSE THE
DEFENDANT'S APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO ARGUE THE
TRIAL [JUDGE] ERRED WHEN [THE TRIAL
JUDGE] DENIED THE DEFENDANT'S MOTION
FOR A MISTRIAL[.]
POINT IV
THIS COURT SHOULD REVERSE THE [PCR
JUDGE'S] DECISION TO DENY THE
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AN EVIDENTIARY HEARING BECAUSE THE
DEFENDANT ESTABLISHED A PRIMA FACIE
CLAIM THAT HIS TRIAL [COUNSEL] DEPRIVED
THE DEFENDANT OF HIS RIGHT TO TESTIFY[.]
POINT V
THIS COURT SHOULD REVERSE THE [PCR
JUDGE'S] DECISION TO DENY THE
DEFENDANT'S PETITION FOR [PCR] BECAUSE
THE DEFENDANT ESTABLISHED A PRIMA
FACIE [CLAIM] OF INEFFECTIVE ASSISTANCE
OF COUNSEL ON THE BASIS OF THE
CUMULATIVE EFFECT OF HIS TRIAL
COUNSEL'S ERRORS[.]
We disagree and affirm substantially for the reasons given by Judge Young. We
add the following remarks.
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When a PCR judge does not hold an evidentiary hearing, this court's
standard of review is de novo as to both the factual inferences drawn by the
judge from the record and the judge's legal conclusions. State v. Blake, 444 N.J.
Super. 285, 294 (App. Div. 2016).
"The standard for an ineffective assistance of counsel claim is . . . the
same under both the United States and New Jersey Constitutions." State v.
Gideon, 244 N.J. 538, 550 (2021). To establish a violation of the right to the
effective assistance of counsel, a defendant must meet the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in
State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that counsel's
performance was deficient. . . . [And] [s]econd, the defendant must show that
the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
To meet the first prong, a defendant must show "that counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
the Sixth Amendment." Ibid. Reviewing courts indulge in a "strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance[.]" Id. at 689. To meet the second prong, a defendant
must show that counsel's errors created a "reasonable probability" that the
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outcome of the proceedings would have been different if counsel had not made
the errors. Strickland, 466 U.S. at 694.
The Strickland/Fritz two-pronged standard also applies to claims of
ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super.
508, 513 (App. Div. 2007). The hallmark of effective appellate advocacy is the
ability to "winnow[] out weaker arguments on appeal and focus[] on one central
issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745,
751-52 (1983). A brief that raises every colorable issue runs the risk of burying
good arguments in a "verbal mound made up of strong and weak contentions."
Id. at 753. Failure to pursue a meritless claim does not constitute ineffective
assistance. State v. Webster, 187 N.J. 254, 256 (2006). Appellate counsel has
no obligation to raise spurious issues on appeal. Ibid.A defendant is only entitled to an evidentiary hearing when he "'has
presented a prima facie [claim] in support of [PCR],'" meaning that a defendant
must demonstrate "a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
State v. Preciose, 129 N.J. 451, 463 (1992)). A defendant must "do more than
make bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim entitling him to an evidentiary hearing. State v.
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Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the
burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350
(2012). We "view the facts in the light most favorable to a defendant to
determine whether a defendant has established a prima facie claim." Preciose,
129 N.J. at 463-64.
Without any competent showing, defendant argues his trial counsel failed
to produce a witness who would have testified that defendant had been invited
into the apartment. Defendant contends that such testimony would have negated
the burglary and felony murder charges by demonstrating that he went to the
apartment with permission and without the intent to commit an offense. During
his statement to the police, defendant never mentioned the bald assertion that he
was invited there. Moreover, even if defendant mentioned that fact to the police
or defendant's proposed witness would have testified to that fact, it would have
been completely contrary to the overwhelming evidence of guilt, such as the
friend's testimony at trial, defendant bringing the weapon to the apartment, the
gloves police recovered from the roof, the video showing the mother and son
going through the window, and defendant beating the mother on the ground with
a metal chair.
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Defendant argues that he did not receive a fair trial and that appellate
counsel failed to raise that contention on appeal. In our unpublished opinion we
addressed his contentions as to juror number eight, and therefore he is barred
under Rule 3:22-4. But on the merits, as the PCR judge concluded, there was
no abuse of discretion by allowing the juror to deliberate. And as to juror
number five, the trial judge questioned that individual, who reiterated that he
could remain fair and impartial. Moreover, defendant's argument that he was
deprived of the right to testify is belied by the trial record. Finally, defendant's
arguments as to appellate counsel—as to testimony by one witness and
purported prosecutorial misconduct—are unsupported by the record and amount
to mere bald assertions insufficient to establish a prima facie claim for PCR.
To the extent we have not otherwise specifically addressed any of
defendant's remaining arguments, we conclude they are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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