State of New Jersey v. Omar Galvez ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3651-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OMAR GALVEZ, a/k/a
ORLANDO ROMERO,
OMAR GAULEZ, OMAR
GALVEZ-VELASQUEZ,
and OMAR GALVEZ-
VELAZQUEZ,
Defendant-Appellant.
_______________________
Submitted March 13, 2024 – Decided April 11, 2024
Before Judges Vernoia and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 15-06-
0680.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (David M. Galemba, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Omar Galvez of the first-degree murder of
Jennifer Cruz-Chavez (the victim) and the court imposed a sixty-five-year
sentence subject to the requirements of the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and remanded for
reconsideration of the sentencing court's order requiring that he pay restitution.
State v. Galvez, No. A-2121-16 (App. Div. May 17, 2018) (slip op. at 18). The
Supreme Court denied defendant's petition for certification. State v. Galvez,
236 N.J. 221 (2018).
Defendant filed a post-conviction relief (PCR) petition alleging in part
ineffective assistance of his trial counsel. Defendant's PCR counsel more
particularly argued trial counsel had been ineffective by failing to move to
suppress evidence seized from defendant's residence and two vehicles parked
outside the residence during the execution of a search warrant and by failing to
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call as a witness at trial, Dr. Zhongxue Hua,1 a forensic pathologist who had
been retained as an expert on defendant's behalf.
The court heard oral argument on defendant's claim trial counsel had been
ineffective by failing to file a suppression motion and the court conducted an
evidentiary hearing limited to defendant's claim trial counsel had been
ineffective by failing to call Dr. Hua as a witness. In a detailed written opinion
following the hearing, the court rejected defendant's claims. Defendant appeals
from the court's order denying the PCR petition. 2 We affirm.
I.
On August 24, 2014, in a wooded area in Fairfield Township, hunters
found the victim's body and called the police. New Jersey State Police
responded to the scene, located the victim's body, and observed blood spatter on
1
The trial court transcripts refer to Dr. Hua as Dr. Wahl. We find this to be a
transcription error. It is undisputed that Dr. Hua is the putative witness
defendant claims his counsel erred by failing to call as a trial witness.
2
Defendant offered other claims supporting his PCR petition, each of which
was rejected by the PCR court. We do not address those claims because
defendant does not argue on appeal that the court erred by rejecting them as
grounds supporting PCR. See generally Drinker Biddle & Reath LLP v. N.J.
Dep't of L. & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011)
(explaining an issue not briefed on appeal is deemed abandoned).
A-3651-21
3
vegetation around the body. The State Police also observed that the victim "had
sustained severe injuries to the head area."
The State Police later identified the victim and questioned multiple
individuals who knew her. During their investigation, the State Police learned
the victim had been at a party on the evening before her body was found and had
left the party with two "Mexican" males in a van that was variously described
as "gray" and as a "white Town [&] Country minivan."
Laticia Lopez testified she lived with defendant—whom she described as
her "prior partner" with whom she shared children—and Jose Martinez at a
Bridgeton residence at the time of the murder and she had separately attended
the party but had left before defendant arrived. 3 Lopez testified defendant had
not returned home following the party until "the early hours [of the morning]
when he came back to sleep."
She also testified that at that time, they had three vehicles at the residence,
including a white minivan. Prior to the evening of the party, Martinez had
3
Lopez also referred to Jose Martinez as Jose Umberto, and Martinez is
otherwise referred to as Jose Umberto Martinez in the record on appeal. A grand
jury charged defendant and Martinez with the victim's murder in the same
indictment. The court severed the charges against defendant from those against
Martinez and their cases proceeded separately.
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parked the minivan "wherever he would find a space" but following the party
and the discovery of the victim's body, Martinez parked the vehicle "behind the
fence" on the property. Lopez also testified that defendant never drove the white
minivan and only Martinez drove it. 4
The State Police arrested defendant on September 10, 2014. Following
the arrest, a State Police detective interrogated defendant. During the
interrogation, defendant admitted he had been present when the victim was
murdered but claimed Martinez had committed the crime.
During the interrogation, defendant explained that he and Martinez had
traveled to the party in the white minivan. According to defendant, as he and
Martinez left the party, the victim approached them on the street and asked if
they "wanted sex." The victim then entered the minivan, and Martinez drove
the minivan with the victim and defendant to a wooded area. Defendant reported
that Martinez exited the minivan with the victim to have sex, and defendant later
saw Martinez striking the victim with "something in his hand."
Defendant further explained that he exited the minivan and Martinez said
the victim had stolen from him. Defendant told the detective that he had
4
Lopez's trial testimony contradicted her statement to the State Police that
defendant had driven the white minivan on the evening of the party and the
victim's murder.
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"grabbed" the victim; she "tried to . . . wrestle[]"; she fell to the ground; he
"kicked her once" in the head; Martinez continued to hit her with a hammer and
told defendant he had "killed her"; and he and Martinez left the scene in the
minivan, leaving the victim behind. Defendant also reported the sneakers that
"look like boots" he had worn on the evening of the murder were at his home.
A recording of defendant's interrogation by the State Police was played for the
jury during the trial.
Pursuant to a search warrant issued based on an affidavit submitted by a
State Police detective, police searched the residence defendant had shared with
Lopez and Martinez. During execution of the search warrant, the State Police
seized, among other things, a white Town and Country minivan from the
residence and a pair of work boots that defendant allegedly had worn on the
evening of the murder. Two spots of blood, which testing showed contained the
victim's DNA, were found in the minivan. DNA testing of the victim's body
also revealed Martinez's semen was inside her vagina.
Dr. Ian Hood, a forensic pathologist and then-Cumberland County
Medical Examiner, performed the victim's autopsy and observed significant
injuries to her face as well as "considerable destruction of the bones beneath"
her face. According to Dr. Hood, the strikes to the victim's head were "made
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with great force," her jaws had been shattered, the bridge of her nose was
collapsed and crushed, she had bilateral black eyes, and her teeth had been
broken.
When asked at trial what objects could have caused the injuries, Dr. Hood
testified there were many injuries to the victim's head and face caused by a
"heavy object that provides fairly focal, focused, sharp or hard force," such as a
hammer. Dr. Hood also testified to a reasonable degree of medical certainty that
those wounds were caused either by a hammer or "another heavy round object"
that is about an "inch in diameter."
Dr. Hood testified the victim had suffered from other injuries, and if they
had been caused by a boot, he would have "see[n] far more diffuse bruising."
However, he noted there were two bruises that could have been made by kicking
the victim with "a shod foot" or a shoe "with a reasonable sole or toe or heel to
it." However, Dr. Hood explained he could not testify to a reasonable degree of
medical certainty that those injuries were caused by "a boot, a sneaker, or
anything else" because there was "no way [he could] say that for sure."
On cross-examination, Dr. Hood testified that if a single kick to the
victim's head had caused her death, he would expect to see "evidence of swirling
of the brain with diffuse axonal injury," but the victim had not suffered "those
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kinds of injuries." Dr. Hood further acknowledged he could not "say for sure
what actually killed" the victim, but he opined her death was caused by asphyxia,
a terminal seizure resulting from her injuries, or a loss of blood. He attributed
the cause of death to "[m]ultiple blunt and sharp force injuries of the head."
Defendant did not present any witnesses at trial. As noted, the jury found
defendant guilty of first-degree murder, and the court later imposed a lengthy
sentence. Following our affirmance of his conviction and sentence on his direct
appeal, and the Supreme Court's denial of his petition for certification, defendant
filed a PCR petition which, as supplemented by the arguments of his PCR
counsel, asserted trial counsel had been ineffective by failing to move to
suppress the evidence seized from his home during the execution of the search
warrant and by failing to call Dr. Hua as an expert witness at trial.
The PCR court heard argument on the petition and explained it would
reserve decision on defendant's claim trial counsel had been ineffective by
failing to file a suppression motion, but it would conduct an evidentiary hearing
on defendant's claim trial counsel had been ineffective by failing to call Dr. Hua
as a trial witness. At the evidentiary hearing, trial counsel testified concerning
her decision not to call Dr. Hua as a witness and defendant testified in support
of his claim trial counsel was ineffective for making that decision.
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More particularly, defendant testified he did not recall having any
conversations with trial counsel regarding an expert witness testifying at trial.
Defendant asserted trial counsel did not discuss the autopsy report with him or
bring to his attention Dr. Hua's expert report. Defendant further stated that trial
counsel had visited him only once or twice prior to his 2016 trial, even though
she had represented him since his 2014 arrest. Defendant testified that had he
known about Dr. Hua's expert report, he would have wanted Dr. Hua called as a
witness to testify in his defense. Defendant also testified counsel did not review
the forensic evidence with him.
Trial counsel testified she had been an attorney for six or seven years,
had handled hundreds of matters, and had tried six or seven cases prior to
defendant's trial. She explained she had communicated with defendant "with
the help of one of the [c]ourt interpreters" when she was at the courthouse and
she also had gone "over to the jail to speak with him." Trial counsel testified
she had visited defendant approximately five times in jail and had spoken with
him "dozens" of times prior to court appearances through a court interpreter or
through the "Language Line" translation service. Trial counsel also had
reviewed the discovery with defendant and provided him with updates about his
case on multiple occasions prior to trial.
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Trial counsel believed "the State had a fairly strong case" against
defendant because defendant "had given a statement and he pretty much
admitted that he was there when [the murder] happened." Trial counsel also
testified that when the court denied her motion to suppress defendant's statement
to the State Police, she "had to use his statement to the best of [her] abilities in
the trial because he had given [the] statement."
Trial counsel also explained that her decision not to call Dr. Hua as a
witness at trial was based on Dr. Hood's testimony. Counsel stated Dr. Hood's
autopsy report was neutral because "it was pretty consistent with the statement
that [defendant] had given." Trial counsel explained she "wanted the jury to
take [defendant's] statement for what it was and believe . . . that he was not an
active participant in the actual murder; that he was not an accomplice . . . [and]
that he had no knowledge of" Martinez's intent to commit a murder at any time
prior to its occurrence.
According to counsel, the prosecutor notified her prior to trial that Dr.
Hood had indicated some of the injuries could have been caused by a "shod
object" or a "shod foot." As a result, trial counsel understood that Dr. Hood
"potentially was not going to testify consistently within the four corners of his
report." Counsel explained that "if the autopsy or the medical examiner's
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information and testimony was . . . going to change to include that [the victim's
death] could have been . . . caused by essentially multiple kicks to the face, that
was quite concerning, . . . as far as [her] strategy for defense was concerned"
because that putative evidence would contradict defendant's statement he had
kicked the victim only once. When trial counsel became aware of that potential
testimony from Dr. Hood, she "requested a new trial date[] so that [she] could
explore the information with [her] own expert." The court granted the request.
Trial counsel retained Dr. Hua on defendant's behalf for a consultation.
Counsel spoke with Dr. Hua and provided him with the autopsy photographs.
According to trial counsel, she then obtained a "brief opinion" from Dr. Hua,
and he offered her "pointers for cross-examination purposes."
Dr. Hua informed trial counsel that had kicking the victim been the cause
of death, there would have been "things . . . found during the autopsy" that were
not shown in Dr. Hood's autopsy report. Dr. Hua "also indicated that an
anthropologist would be able to determine whether the bones were crushed
by . . . the hammer or . . . the shod object." Dr. Hua told counsel there was no
evidence the victim had drowned in her own blood and such evidence "would
have been evident had the kicks to [her] face been the cause of death."
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Dr. Hua prepared an expert report for use in the event counsel determined
his testimony was required at trial. In his report, Dr. Hua opined as follows:
Although with slight variations in their gross
characteristics, most of her facial/scalp lacerations and
skull fractures are consistent with multiple, repeated,
and overlapping blunt impact injuries by a hammer.
Also, most of her facial/scalp lacerations and skull
fractures are inconsistent with blunt impact injuries by
the referred pair of boots. The observed facial fractures
reflected multiple, repeated, and overlapping blunt
impact injuries; however, in the provided autopsy
photographs, these facial fractures contained no
distinctive or characteristic gross features.
Dr. Hua also found "that the provided autopsy photographs did not illustrate any
conclusive evidence of multiple, repeated, and overlapping kicking by the
refer[r]ed pair of black boots."
Trial counsel explained Dr. Hood had testified at trial that a single kick
could not have caused the victim's death because, if it had, "there would have
been some evidence of like a swirling pattern in the brain." Also, following her
cross examination of Dr. Hood, trial counsel had determined "there was not a
need for another expert to come in and testify" because Dr. Hood had not
testified the victim's "injuries were caused by a shod object." Trial counsel
explained that there were certain "[h]orrific pictures" from the autopsy she
wanted to prevent the jury from seeing, and she understood that if she called Dr.
A-3651-21
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Hua as a witness, those photographs potentially could have been shown to the
jury.
Based on those considerations, trial counsel decided not to call Dr. Hua
as an expert witness. Contrary to defendant's testimony at the PCR hearing, trial
counsel further testified she was "sure" she had discussed with defendant her
consultation with an expert, reviewed with defendant the information from Dr.
Hua's report, and spoken with defendant about trial strategy following Dr.
Hood's trial testimony. Trial counsel did not recall defendant's position
regarding calling an expert witness at trial.
Trial counsel also explained that her strategy at trial was to persuade the
jury to accept defendant's statement to the State Police "that he was not an active
participant in the actual murder," "he was not an accomplice because there was
no discussion prior to the murder" that Martinez intended to or would kill the
victim, and defendant's only involvement had been to kick the victim once and
that single kick did not contribute to the cause of the victim's death.
The PCR court issued a detailed decision denying defendant's PCR
petition, finding defendant had not established trial counsel had been ineffective
by failing to file a motion to suppress evidence or call Dr. Hua as an expert
witness. The court rejected defendant's claim trial counsel had been ineffective
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by failing to move to suppress the evidence seized from defendant 's home and
the white minivan following execution of a search warrant.
Defendant had argued the search-warrant affidavit did not establish
probable cause to seize or search the white minivan at defendant's home because
the affidavit included conflicting information from various witnesses
concerning the color of the van observed at the party. The PCR court denied the
claim, finding defendant had failed to present a prima facie case establishing a
reasonable probability that the trial court would have granted a suppression
motion and the result of his trial would have been different.
The court also found defendant had failed to make a "substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth was included by the affiant in the warrant
affidavit," such that a hearing concerning the validity of the search warrant was
required under Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The court
analyzed the facts set forth in the affidavit, including that: a witness had
reported the victim entered a van with a "Hispanic" man and departed the area
of the party; another witness stated that two "Hispanic" males arrived at the party
in a gray minivan and the victim approached the males and gave them a hug;
another witness reported two "Hispanic" males—Omar, whom the witness
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identified as defendant and Beto—arrived at the party, and the witness drove the
State Police to the Bridgeton residence that was defendant's "possible address";
and the State Police later found Martinez and Lopez at the address.
The search-warrant affidavit also noted the investigation had identified
two possible vehicles involved in the commission of the murder, a silver minivan
described by one witness and a white minivan, which Lopez had told the State
Police defendant was "operating . . . on the night" of the murder. The search-
warrant affidavit further noted two vehicles—both minivans—were found at
defendant's residence "fitting the description which was provided by the
witnesses as the vehicle [the victim] left the party in with the Hispanic males. "
In sum, the PCR court determined the warrant affidavit had established
probable cause to search the residence and seize and search the vehicles the State
Police recovered at the residence. The court therefore determined trial counsel
had not been ineffective by failing to file a meritless suppression motion.
The PCR court also rejected defendant's claim trial counsel had been
ineffective by opting not to call Dr. Hua as a witness. The court found Dr. Hua
and Dr. Hood had made similar determinations about the cause of the victim 's
death. That is, Dr. Hood testified he could not determine, based on the nature
of the victim's injuries, that she had been kicked, and he did not offer any opinion
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to a reasonable degree of medical certainty that kicking the victim contributed
to her death. Rather, he testified the victim suffered multiple injuries to her face
and head with a hammer, or an item similar to a hammer, and the evidence
otherwise showed defendant had told the police Martinez struck the victim with
a hammer and he had kicked the victim only once.
In his report, Dr. Hua similarly stated the evidence did not establish the
victim suffered from repeated kicks to the head and face. Thus, the PCR court
found there was no significant difference of opinion between Dr. Hood, as
expressed in his trial testimony, and Dr. Hua's putative testimony, as reflected
in his report.
The court therefore concluded trial counsel had not been ineffective by
failing to call Dr. Hua, whose testimony in all important respects would have
done nothing more than confirm the State's expert's testimony. Moreover, the
court found that trial counsel had made a reasoned strategic trial decision not to
call Dr. Hua because doing so may have opened the door to the introduction of
additional horrific autopsy photographs.
The court also noted the State's claim that the evidence concerning the
extent of defendant's kicking of the victim was of no moment because
defendant's presence at the scene, his admission he had held the victim while
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Martinez struck her, and his flight from the scene with Martinez while knowing
Martinez had killed the victim, supported a finding of defendant's guilt as an
accomplice. Thus, the court concluded defendant had failed to sustain his
burden of demonstrating he was prejudiced by any alleged erroneous decision
by trial counsel not to call Dr. Hua as a witness.
The court entered an order denying defendant's PCR petition. This appeal
followed. Defendant offers the following arguments for our consideration :
POINT I
AS DEFENDANT HAD ESTABLISHED THAT HE
WAS DENIED EFFECTIVE LEGAL
REPRESENTATION WHEN HIS ATTORNEY
FAILED TO PRESENT THE EXPERT TESTIMONY
OF DR. HUA AND THAT HE WAS PREJUDICED
THEREBY BECAUSE THERE WAS A
REASONABLE PROBABILITY THAT THE
OUTCOME OF THE TRIAL WOULD HAVE BEEN
DIFFERENT HAD DR. HUA TESTIFIED, THE PCR
COURT ERRED WHEN IT DENIED HIS PETITION
FOR [PCR].
POINT II
AS DEFENDANT HAD PRESENTED A PRIMA
FACIE CASE THAT TRIAL COUNSEL WAS
INEFFECTIVE BECAUSE [S]HE FAILED TO MOVE
TO SUPPRESS THE WORK BOOTS LOCATED IN
OR NEAR HIS HOME AND THERE WAS A
GENUINE ISSUE OF MATERIAL FACT IN
DISPUTE, THE PCR COURT ERRED WHEN IT
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DENIED THE CLAIM WITHOUT FIRST HOLDING
AN EVIDENTIARY HEARING.
II.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United States
Supreme Court established a two-part standard, later adopted under the New
Jersey Constitution by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), to determine whether a defendant has been deprived of the effective
assistance of counsel. Under the standard's first prong, a petitioner must show
counsel's performance was deficient by demonstrating counsel's handling of the
matter "fell below an objective standard of reasonableness" and that "counsel
made errors so serious that counsel was not functioning as the 'counsel'
guaranteed [to] the defendant by the Sixth Amendment." Strickland, 466 U.S.
at 687-88.
Under the "'second, and far more difficult prong of the'" Strickland
standard, State v. Gideon, 244 N.J. 538, 550 (2021) (quoting State v. Preciose,
129 N.J. 451, 463 (1992)), a defendant "'must show that the deficient
performance prejudiced the defense[,]'" State v. O'Neil, 219 N.J. 598, 611
(2014) (quoting Strickland, 466 U.S. 687). To establish prejudice, "'[t]he
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
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reasonable probability is a probability sufficient to undermine confidence in the
outcome.'" Gideon, 244 N.J. at 550-51 (alteration in original) (quoting
Strickland, 466 U.S. at 694). Proof of prejudice under Strickland's second prong
"'is an exacting standard.'" Id. at 551 (quoting State v. Allegro, 193 N.J. 352,
367 (2008)). A defendant seeking PCR "must 'affirmatively prove prejudice'"
satisfying the second prong of the Strickland standard. Ibid. (quoting Strickland,
466 U.S. at 693).
A failure to satisfy either prong of the Strickland standard requires the
denial of a PCR petition founded on an ineffective assistance of counsel claim.
Strickland, 466 U.S. at 700. "With respect to both prongs of the Strickland test,
a defendant asserting ineffective assistance of counsel on PCR bears the burden
of proving his or her right to relief by a preponderance of the evidence." State
v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted).
We first consider defendant's contention the PCR court erred by rejecting
his claim trial counsel had been ineffective by failing to file a motion to suppress
evidence seized during the search of defendant's Bridgeton residence and the
vehicles at the residence. Defendant argued before the PCR court that he had
been prejudiced by trial counsel's failure to move to suppress evidence—
specifically two spots of the victim's blood—that had been found in the white
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minivan that was seized during execution of the search warrant. However, in
his brief on appeal, defendant makes no mention of the blood found in the white
minivan and does not argue counsel had been ineffective by failing to move to
suppress that evidence. Instead, he claims he was prejudiced by trial counsel's
failure to move to suppress evidence concerning boots that were recovered from
his residence during execution of the warrant. Defendant further contends
counsel's failure to move to suppress the evidence deprived him of his right to
challenge the validity of the warrant at a Franks hearing. We are unpersuaded
by defendant's arguments.
"Although a demonstration of prejudice constitutes the second part of the
Strickland analysis, courts are permitted leeway to choose to examine first
whether a defendant has been prejudiced, and if not, to dismiss the claim without
determining whether counsel's performance was constitutionally deficient."
Gaitan, 209 N.J. at 350 (citation omitted). Applying that principle, we perceive
no error in the PCR court's rejection of defendant's suppression-motion claim
because defendant fails to make an affirmative showing he suffered any
prejudice under the Strickland standard as a result of the alleged error. See
Gideon, 244 N.J. at 550-51.
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Defendant argues on appeal he suffered prejudice because counsel's
failure to file the suppression motion resulted in the admission of evidence at
trial concerning the work boots recovered from his residence. Defendant
contends the work "boots were the only physical evidence used to
tie . . . defendant to [the] murder" and "[h]ad trial counsel obtained suppression
of the boots, the jury would have had no physical evidence tying him to the
murder, and the result [of this trial] clearly would have been different."
Defendant's argument fails because the State did not elicit any direct
testimony from its witnesses concerning the work boots or introduce the boots
in evidence during its case at trial. Rather, the evidence concerning the boots
consisted of defendant's statement to the State Police during which he said the
sneakers—which he said looked like boots—he had worn on the night of the
victim's murder were at his home. The parties also agreed to the admission of a
photograph of the boots, with a stipulation that was read to the jury stating the
photograph is "of the boots that were recovered from [d]efendant's residence."
Defendant's trial counsel elicited the only testimony at trial concerning
the boots and, in doing so, established they did not support defendant's guilt of
the murder. More particularly, during her cross-examination of a State Police
detective, trial counsel elicited confirmation that defendant had told the State
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Police that the clothing and boots he had worn on the evening of the murder
were at his home. Through cross-examination, trial counsel further established
defendant had said he had not worn the boots "since the night of the murder"
and defendant had shown the police "exactly where [the boots] would be found"
at his home. Based on counsel's further cross-examination, the detective
acknowledged the boots had been collected and sent to the lab, and lab tests had
established there "was absolutely no DNA on the boots," "[t]here was no blood
evidence on the boots," and "[t]here was no human tissue that was found on the
boots."
In other words, trial counsel raised the issue of the boots and their
recovery at defendant's home to establish they contained no evidence tying
defendant to the brutal injuries the victim had suffered to her head and face.
Thus, the only evidence presented at trial concerning the boots indirectly
supported defendant's statement to the police—that he had only kicked the
victim once—and his defense at trial—that his admitted single kick to
defendant's head had not caused the victim any injury such that the victim's
blood, DNA, or human tissue were found on the boots. Given that defendant
had admitted to the police that the boots he wore on the evening of the victim 's
murder were at his home, the limited testimony elicited concerning the boots
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was not prejudicial to defendant because it supported his defense, was consistent
with his statement to the police, and provided an added benefit of supporting the
credibility of his statement to the State Police.
Based on that record, and in the absence of any affirmative showing of a
reasonable probability that but for the testimony concerning the boots, the result
of defendant's trial would have been different, see Gideon, 244 N.J. at 550-51,
we agree with the court's rejection of defendant's claim trial counsel had been
ineffective by failing to move to suppress the boots. Defendant's failure to
satisfy his burden of affirmatively demonstrating prejudice under the second
prong of the Strickland standard requires rejection of the claim on that basis
alone. Strickland, 466 U.S. at 700; Gaitan, 209 N.J. at 350.
Although we do not need to reach this issue, we also find no merit to
defendant's claim the court erred by finding defendant had failed to satisfy his
burden of establishing counsel's performance was constitutionally deficient
under Strickland's first prong. Defendant argues the court erred by rejecting his
claim that trial counsel was ineffective by failing to request a Franks hearing
because had the request been made, "it would have been successful, and the
boots at defendant's residence would have been suppressed."
A-3651-21
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"In order to satisfy the Strickland standard when an ineffective assistance
of counsel claim is based on the failure to file a suppression motion, a defendant
must establish 'that [their] Fourth Amendment claim is meritorious.'" State v.
O'Neal, 190 N.J. 601, 618-19 (2007) (quoting State v. Fisher, 156 N.J. 494, 501
(1998)); see also State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to
raise unsuccessful legal arguments does not constitute ineffective assistance of
counsel."). Here, defendant failed to sustain that burden because he did not
demonstrate he had a meritorious motion entitling him to a hearing under Franks.
A Franks hearing is required "where the defendant makes a substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included . . . in the warrant affidavit, and if
the allegedly false statement is necessary to the finding of probable cause." 438
U.S. at 155-56. To sustain that burden, a defendant "must allege 'deliberate
falsehood or reckless disregard for the truth,' pointing out with specificity the
portions of the warrant that are claimed to be untrue." State v. Howery, 80 N.J.
563, 567 (1979) (quoting Franks, 438 U.S. at 171). It is only where a defendant
also establishes "the allegedly false statement [was] necessary to the [issuing
judge's] finding of probable cause, [does] the Fourth Amendment require[ ] that
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a hearing be held at the defendant's request." State v. Desir, 245 N.J. 179, 196
(2021) (quoting Franks, 438 U.S. at 155-56).
In defendant's brief on appeal, he does not point to a single alleged false
statement made by the affiant of the search-warrant affidavit that would have
supported a motion for a Franks hearing. He does not contend the affiant made
any false statements "knowingly and intentionally, or with reckless disregard of
the truth," such that he would have been entitled to a Franks hearing if trial
counsel had asked for one. 438 U.S. at 155-56.
Defendant merely picks through the affidavit and asserts that there were
conflicts among certain statements made by witnesses to the State Police. He
ignores, however, that "a Franks hearing is not directed at picking apart minor
technical problems with a warrant application; it is aimed at warrants obtained
through intentional wrongdoing by law enforcement agents." State v. Broom-
Smith, 406 N.J. Super. 228, 240 (App. Div. 2009). Defendant makes no showing
of such wrongdoing here.
Defendant failed to carry his burden of demonstrating that the record
supported the filing of a meritorious motion for a Franks hearing and, as a result,
failed to establish trial counsel's performance was deficient under Strickland's
first prong for opting not to file a motion wholly devoid of merit. O'Neal, 190
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N.J. at 619; Worlock, 117 N.J. at 625. Defendant's failure to demonstrate trial
counsel's performance was deficient under the first prong of the Strickland
standard provides a separate, but equally dispositive, basis to affirm the court's
denial of his petition.5 See Gaitan, 209 N.J. at 350.
Defendant also argues the PCR court erred by denying his claim trial
counsel had been ineffective by deciding not to call Dr. Hua as an expert witness
at trial. The argument is founded on the contention that Dr. Hua "could" have
testified in accordance with his report that the "autopsy photographs did not
illustrate any conclusive evidence of multiple, repeated, and overlapping kicking
by the . . . black boots" and the jury "could therefore have found that the
defendant's kick was not the proximate cause of the victim's death." In our view,
the PCR court correctly rejected the claim because defendant did not sustain his
burden under either prong of the Strickland standard.
5
We note defendant was not entitled to an evidentiary hearing on his claim trial
counsel was ineffective by failing to file a motion to suppress the evidence
seized during the execution of the search warrant because he failed to establish
a prima facie claim under the Strickland standard. See R. 3:22-10(b) (providing
a court should hold an evidentiary hearing on a PCR petition only if the
defendant establishes a prima facie claim in support of PCR, "there are material
issues of disputed fact that cannot be resolved by reference to the existing
record," and "an evidentiary hearing is necessary to resolve the claims for
relief"); see generally State v. Porter, 216 N.J. 343, 354 (App. Div. 2013).
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Defendant did not affirmatively demonstrate he suffered prejudice under
the Strickland standard based on trial counsel's decision not to call Dr. Hua as a
witness, and counsel's conclusory claims to the contrary on appeal are
insufficient to satisfy defendant's burden. To the extent the State attempted to
claim defendant was guilty of the murder because he contributed to or caused
the victim's death by kicking her, the State had to prove those facts beyond a
reasonable doubt. State v. Wakefield, 190 N.J. 397, 469-70 (2007).
Dr. Hood's testimony did not help that cause and, in fact, undermined it.
He testified that if the victim had been kicked in the head such that it caused a
fatal injury, he would have observed injuries to the brain not present in the
victim. Dr. Hood also testified he could not opine to a reasonable degree of
medical certainty that the victim's injuries were caused by kicking at all.
Following Dr. Hood's testimony, the State lacked any competent evidence
that the purported kicking of the victim, by defendant or anyone else, caused or
contributed to the victim's death. Without such evidence, Dr. Hua's putative
testimony, as set forth in his report, would have only confirmed what Dr. Hood
had found—that the autopsy did not reveal any evidence supporting a finding
the victim's death was caused by kicks to the head. Thus, the record at trial does
not permit a reasoned conclusion there is a reasonable probability that but for
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trial counsel's purported error in deciding not to call Dr. Hua as a witness, the
result of the trial would have been different, and defendant otherwise also failed
to make an affirmative showing he suffered any prejudice as a result of trial
counsel's decision. Defendant therefore failed to satisfy his burden under
Strickland's second prong, and the court correctly rejected the claim for that
reason. See Strickland, 466 U.S. 687; Gideon, 244 N.J. at 550-51.
We also observe that trial counsel's decision not to call Dr. Hua as a
witness did not result in prejudice under Strickland's second prong because the
evidence—primarily defendant's statement to the police—otherwise established
defendant's guilt of the murder as Martinez's accomplice regardless of whether
defendant had kicked the victim in the head. Defendant admitted traveling to
the woods with Martinez and the victim and observing Martinez striking the
victim as defendant first sat in the vehicle. According to defendant's account of
the events, he did not remain in the vehicle after he saw Martinez striking the
victim in the head with the object in his hand. Instead, defendant exited the
vehicle and joined the fray, grabbing the victim as she "wrestle[d]" and as
Martinez continued striking her as she fell from defendant's grasp to the ground.
Defendant also admitted kicking the victim once as she laid on the ground after
she fell from his grasp. And, after Martinez continued to strike the victim, and
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said he had killed her, defendant and Martinez fled from the scene together in
the minivan and returned to residence they shared, where defendant then went
to bed.
Defendant's attempt to support his ineffective-assistance claim based on
trial counsel's decision not to call Dr. Hua as a witness fails to account for that
evidence, which overwhelmingly supported a finding he was guilty as an
accomplice. Thus, although the absence of Dr. Hua's testimony concerning
whether the victim had been kicked did not result in prejudice under the
Strickland standard because the State's expert had testified there was no
evidence a kick caused injuries to the victim, the lack of Dr. Hua's putative
testimony did not result in prejudice also because defendant had otherwise
admitted sufficient facts establishing his guilt as an accomplice. Defendant's
failure to establish he suffered prejudice as the result of his trial counsel's
purported error in failing to call Dr. Hua as a witness required the PCR court's
rejection of his claim. Strickland, 466 U.S. at 700.
Defendant also failed to demonstrate his counsel's performance was
deficient under the first prong of the Strickland standard. Indeed, for the reasons
we have noted, Dr. Hua's testimony would not have offered anything of
significance that did not already exist in the record following Dr. Hood's
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testimony, and counsel's performance is not deficient by failing to call a witness
that would not have mattered. State v. L.A., 433 N.J. Super. 1, 15-16 (App. Div.
2013) (explaining the court must determine "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").
Moreover, as the PCR court found, trial counsel's decision not to call Dr.
Hua represented a thoughtful and reasoned strategic trial decision that does not
provide grounds for an ineffective assistance of counsel claim. See State v.
Arthur, 184 N.J. 307, 319 (2005); State v. Savage, 120 N.J. 594, 617-18 (1990).
Defendant's statement to the State Police, his admitted presence at the murder
scene, his description of his physical interaction with the victim at the scene,
and his detailed description of the victim's murder provided very difficult
circumstances for the defense. Although there was a dearth of physical evidence
tying him to the murder scene, defendant's description of the location of the
murder and the manner in which the murder was committed provided details
only a person who had been present would have known. Trial counsel was
therefore confronted with difficult choices about the best strategy to employ at
trial. As trial counsel explained at the PCR hearing, calling Dr. Hua presented
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a risk that graphic and what she described as "horrific" photos that had not been
introduced as evidence by the State would be presented without Dr. Hua's
testimony providing any counterbalancing benefit to the defense.
Based on the record presented and trial counsel's testimony at the PCR
hearing, we discern no error in the court's determination defendant failed to
demonstrate trial counsel's performance was deficient by opting not to call Dr.
Hua as a witness. See State v. Castagna, 187 N.J. 293, 314 (2006) (explaining
"[t]he quality of counsel's performance cannot be fairly assessed by focusing on
a handful of issues while ignoring the totality of counsel's performance in the
context of the State's evidence of defendant's guilt"). Defendant made no
showing trial counsel's decision was not "within the range of competence
demanded of attorneys in criminal cases," "fell below an objective standard of
reasonableness," or "so undermined the proper function of the adversarial
process that the trial cannot be relied on as having produced a just result."
Strickland, 466 U.S. at 686-88.
A court "must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance," and "the defendant
must overcome the presumption that, under the circumstances, the challenged
action [by counsel] 'might be considered sound trial strategy.'" Id. at 689
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(citation omitted). The PCR court correctly determined defendant failed to
sustain that burden and, for that reason, properly concluded defendant failed to
satisfy the first prong of the Strickland standard.
In sum, defendant failed to sustain his burden under the Strickland
standard to establish his ineffective assistance of counsel claims. We therefore
affirm the court's order denying defendant's PCR petition. We have considered
all of defendant's arguments on appeal and, to the extent we have not expressly
addressed any of them, we have determined they are without sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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