NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0058-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERTO SALAZAR,
Defendant-Appellant.
__________________________________
Submitted September 14, 2017 – Decided October 6, 2017
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
01-03-0349.
Joseph E. Krakora, Public Defender, attorney
for appellant (Carolyn V. Bostic, Designated
Counsel, on the brief).
Thomas K. Isenhour, Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
This case involves defendant's application for post-
conviction relief (PCR) from his felony murder conviction and
sentence. Following our remand for a hearing on defendant's PCR
petition, the trial court conducted a hearing to determine why
defendant's trial counsel had not presented the testimony of a
medical expert. The expert wrote a report questioning whether the
injuries the victim sustained in a fall during the robbery caused
defendant's death. Based on counsel's testimony during the remand
hearing, which the trial court found credible, the court concluded
trial counsel made a strategic decision not to call the expert.
For that reason, the trial court denied defendant's PCR petition.
Adhering to our standard of review, we accept the trial
court's credibility determinations and consequent finding that
trial counsel's decision not to call the medical expert was
strategic. Such strategic decisions, which are always subject to
second-guessing, are generally not grounds for reversing a
conviction based on the ineffective assistance of trial counsel.
This case presents no exception. Accordingly, we affirm.
A jury convicted defendant of second-degree reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3), and second-degree robbery, N.J.S.A. 2C:15-
1. The trial court merged the three convictions and sentenced
defendant on the felony murder count to a thirty-year prison term
without parole. We affirmed his conviction on direct appeal,
State v. Salazar, No. A-6235-03 (App. Div. Feb. 6, 2008), and the
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Supreme Court denied defendant's petition for certification, 195
N.J. 523 (2008).
Four months after the Supreme Court denied defendant's
petition for certification, he filed a PCR petition, which the
trial court denied without an evidentiary hearing. Defendant
appealed. We reversed and remanded for a hearing. State v.
Salazar, No. A-2504-11 (App. Div. May 21, 2014). Following the
hearing on remand, the trial court again denied defendant's PCR
petition. This appeal followed.
The following facts, which the State established at trial,
provide context for defendant's PCR claim. The victim, age eighty-
eight, lived alone on the third floor of an apartment complex.
One morning, the complex's manager found the victim on her kitchen
floor lying on her back. She had been robbed. The manager called
9-1-1, an ambulance responded, and Emergency Medical Technicians
transported the victim to the hospital, where she died the
following day. On the evening of the robbery, police officers
canvassing the courtyard outside the apartment building found a
plastic bag containing the victim's purse and a black ski mask.
The State stipulated they had tested saliva found on the ski mask
and determined it was inconsistent with defendant's DNA, but was
consistent with that of defendant's son.
3 A-0058-15T2
The next night, detectives questioned defendant, who gave
this account of the crime:
I went back to Miss Feehan's and she was on
her way walking towards me in the hallway.
Then she handed me $2 and 25 cents. I came
down the stairs, went to the store, picked up
the coffee and bun. I went back into the
building, got into my apartment and told my
other daughter to get ready to work and she
answered me that she was tired and she wasn't
going to go.
Then I went to Miss Feehan's apartment
with the coffee and the bun. I got into the
apartment. The door wide open like always.
Miss Feehan was sitting on the couch in the
living room. I helped her get up from the
couch, took her to the kitchen, put the coffee
and the bun on the table and she was standing
by the table. And I walked back towards the
living room and I saw the pocketbook. It was
a chance for me to take the pocketbook which
I picked up with my right hand. I started
walking out. By the time I got to the front
door Miss Feehan saw me and asked me what you
do. I got scared. I had the pocketbook on
my left side. I turned around facing her when
she grabbed my left arm which I was holding
the pocketbook in. I tried to get her off my
arm by pulling my arm away from her. Her
glasses fell off. Then she lost balance and
fall straight back.
[Question by Detective]: Did you see her
hit the floor?
[Answer by Defendant]: Yes.
[Question by Detective]: Did you think
she lost consciousness when she hit the floor?
[Answer by Defendant]: Yes because she
didn't make any sounds.
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[Question by Detective]: What did you
do next?
[Answer by Defendant]: I left the
apartment and closed the door after me and
went straight to my apartment with the
pocketbook.
Defendant also admitted that after returning to his
apartment, he placed the victim's purse in a plastic bag, took an
elevator to the basement, opened the back door, and threw the bag
into the backyard. Although acknowledging the ski mask belonged
to his son, defendant denied knowing how it got into the plastic
bag. He admitted using the mask the night before the robbery
while chopping ice, but he claimed he had not worn it since then.
The State presented three medical witnesses: the victim's
treating physician, an assistant county medical examiner, and a
New York University Professor of Neuropathology. The victim's
treating physician testified that during the two years preceding
her death, the victim was an elderly lady but in good condition.
During cross-examination, the doctor admitted hearing that after
he last saw the victim but before her death, she had fallen and
had been admitted to a nursing home.
According to the assistant county medical examiner who
performed the autopsy on the victim the day she died, the cause
of the victim's death was blunt force head trauma and the manner
of death was homicide. When performing the autopsy, the doctor
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observed "[m]ultiple bruises of the same age, some abrasions and
predominantly . . . on the back of the head, on the top back of
the head was [an] elongated bluish purplish bruise in a measure
one and a half inch by three quarters of an inch." The coloring
was significant because it indicated the bruise was recent, meaning
it had occurred within hours as opposed to days. This and the
other bruises were consistent with a single fall.
Beneath the bruise on the back of the victim's head was a
subdural hemorrhage, that is, bleeding caused by a broken blood
vessel. The assistant county medical examiner explained that such
a hemorrhage "is going to compress the brain and can produce death
or some neurological anomalies." He further explained, "[i]n this
case there were subdural hemorrhages, that mean[s] blood . . . on
the outside of the brain [on] both sides." The doctor testified
the cause of the victim's death was blunt force trauma to her
head, specifically, to the back of her head. He also explained
the injury to the back of the victim's head caused the bleeding
on both sides of the brain.
During cross-examination, the assistant county medical
examiner identified a photograph confirming the victim had "small
abrasions" on the top of her head in the front. He conceded the
possibility these bruises were sustained at a different time than
the bruises to the front of her body. Similarly, the doctor
6 A-0058-15T2
identified abrasions on the victim's back that could have occurred
on the same day but at a different time than bruises on the front
of her body. The doctor testified bruises on the victim's left
chest, left shoulder, back of the arms, and back of the head were
caused by trauma. He reiterated the bruise on the back of the
victim's head was consistent with an impact. The hemorrhages
occurred within minutes to hours of the trauma.
The State's other medical witness, a New York University
Professor of Neuropathology, examined the victim's brain. He
corroborated the medical examiner's findings and testified there
was no evidence she died from a stroke. He ruled out natural
disease processes as the cause of her death.
Before defendant's trial started, his attorney obtained a
report from a forensic pathologist. The report included the
following opinion:
Responsibility for the head trauma which
led to the stroke that ultimately caused [the
victim's] death apparently was arbitrarily
assigned to [defendant]. However, in view of
the history and physical evidence of repeated
falls in which [defendant] apparently was not
involved, it cannot be stated with reasonable
medical probability that he caused the fall
that ultimately was responsible for her death.
Defense counsel did not present the testimony of the forensic
pathologist. Rather, in her summation, she attempted to persuade
the jury defendant's statement confessing the crime was so
7 A-0058-15T2
inconsistent with the physical evidence that the jury should
disregard it. She further argued the evidence the ski mask
belonged to defendant's son was so strong it suggested he committed
the crime. As noted, the jury rejected this defense.
Defendant's trial counsel was the only witness to testify at
the remand hearing on defendant's ineffective-assistance claim.
The forensic pathologist from whom she had received a report, Dr.
John E. Adams, had died before the PCR hearing occurred.
Defendant's trial counsel testified that after receiving Dr.
Adams' report, she compared it with those of the State's medical
experts. Like the State's experts, Dr. Adams concluded the victim
died as a result of head trauma. Trial counsel was questioned
about this statement in Dr. Adams' report: "However, in view of
the history and physical evidence of repeated falls in which
[defendant] apparently was not involved, it cannot be stated with
reasonable medical certainty that he caused the fall that
ultimately was responsible for her death." In response, she said
the statement was not a medical opinion. Counsel explained, "the
idea was that [the victim] could have fallen, she could have fallen
subsequently or before [defendant] pushed her, although there was
no actual physical evidence that that in fact occurred." Trial
counsel asserted that who caused the fall resulting in the victim's
death was a question of fact. In addition, trial counsel testified
8 A-0058-15T2
she cross-examined the assistant medical examiner and the victim's
treating physician about other falls and other bruises the victim
had sustained.
During cross-examination at the PCR hearing, trial counsel
explained during her defense theory: defendant was not the person
who committed the crime but confessed to draw attention away from
his son. DNA evidence extracted from the ski mask supported that
theory. Trial counsel testified she and defendant spoke about the
defense. In her opinion, arguing the fall did not cause the
victim's death was inconsistent with the defense theory that
defendant was not present when the crime occurred. As counsel
explained, "I would have basically had to argue [defendant] wasn't
there, he didn't commit this robbery, he didn't commit this push,
however if he did, then . . . the fall didn't cause her death."
Counsel reiterated "there was really no evidence, concrete
evidence in that direction." That is basically what she discussed
with defendant.
Based on trial counsel's testimony, the trial court
determined it was "counsel's strategic decision not to call Dr.
Adams, the forensic pathologist, as a defense witness." The court
further concluded "that for purposes of the defense, no medical
expert witness testimony was required. Trial counsel's strategy
of cross-examining the State's expert medical witnesses on the
9 A-0058-15T2
issue of causation achieved the same result of challenging the
witnesses' credibility and creating reasonable doubt as to the
opinions of the State's experts." Acknowledging the defense
medical expert's testimony "would have provided additional support
for the theory that the victim's fall was caused by reasons other
than the defendant's acts," the court nonetheless noted "defense
counsel considered the victim's fall may have been due to her
medical condition and questioned the State's witnesses regarding
same."
For these reasons, the trial court determined defendant
failed to show his trial counsel's representation fell below an
objective standard of reasonableness, and further failed to show
there was a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. The trial court thus denied defendant's petition.
On appeal, defendant argues:
POINT I
TRIAL COUNSEL'S DECISION NOT TO CALL DR. ADAMS, WHOSE EXPERT
TRIAL TESTIMONY WOULD HAVE NEGATED THE CAUSATION ELEMENT OF
THE FELONY MURDER CHARGE, WAS NOT A SOUND TRIAL STRATEGY, AND
CONSTITUTED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE DEFENDANT'S RIGHTS UNDER THE 6TH AND 14TH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1,
PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. The Strickland Standard.
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B. None of Trial Counsel's Proffered Reasons Justify Her
Failure to Call Dr. Adams Whose Report Negated the
Causation Element of the Felony Murder Charge.
1. Contrary to Trial Counsel's Testimony, There Were
Significant Differences Between Dr. Adams' Opinion
and That of the State's Experts on the Issue of
Cause of Death.
2. Trial Counsel Was Mistaken, as a Matter of Law, in
Concluding That Dr. Adams' Opinion, That
Responsibility for the Head Trauma Which Caused the
Victim's Death was "Arbitrarily Assigned" to
Defendant, Was Not a Medical Opinion.
3. The Fact That Trial Counsel Cross-Examined the
State's Witnesses Regarding Their Medical Opinions
Does Not Excuse Her Failure to Present Her Own
Medical Expert to Challenge the State's Experts'
Opinions.
4. Dr. Adams' Opinion Was Not Only Useful, But Would
Have Provided Essential Information Necessary For
the Jury to Find Reasonable Doubt on the Causation
Element of Felony Murder.
C. Trial Counsel's Failure to Call Dr. Adams Constituted
Ineffective Assistance of Counsel Under Strickland.
To prove ineffective assistance of counsel, a defendant must
satisfy the Strickland two-part test by demonstrating "counsel's
performance was deficient," that is, "that counsel made errors so
serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment"; and, "there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,
11 A-0058-15T2
2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v.
Fritz, 105 N.J. 42, 58 (1987). Matters falling under the purview
of "trial strategy" do not support a claim of ineffective
assistance of counsel. Fritz, supra, 105 N.J. at 54.
Here, trial counsel's decision not to call Dr. Adams as a
witness was strategic. To be sure, there is merit to defendant's
contention the doctor's testimony was not inconsistent with the
primary defense theory, namely, defendant's son, not defendant,
perpetrated the crimes. There is also some merit to defendant's
argument that, contrary to trial counsel's assertion, there were
significant differences between Dr. Adams' medical opinion and
that of the State's expert witnesses. Fairly read, the State's
experts were of the opinion that trauma that caused the victim's
death was consistent with a recent impact to her head, which the
jury could only have concluded occurred during the robbery, as
defendant confessed. Dr. Adams' opinion, if believed, would have
undermined the State's expert medical evidence concerning
causation.
Nonetheless, as trial counsel testified at the PCR hearing,
there was little factual support for Dr. Adams' opinion concerning
causation being inconclusive. And it remains a legitimate strategy
not to water down a stronger theory of defense with a weaker
alternate theory. In this case, the State stipulated the ski mask
12 A-0058-15T2
found in the bag with the victim's purse belonged to defendant's
son. The State was unable to introduce any forensic evidence
linking the ski mask to defendant. Thus, prospectively, one could
have reasonably decided as a matter of trial strategy that
presenting a tenuous causation theory might cause the jurors to
believe defendant was presenting smokescreens in a weak attempt
to undermine his confession. Such strategy could be viewed as
creating the risk of losing credibility with the jury and eroding
a defense supported by forensic evidence.
Although there were inconsistencies between trial counsel's
testimony at the PCR hearing and the trial record, those
inconsistencies were explainable in part by the lapse of time –
twelve years – between the trial and trial counsel's testimony at
the PCR hearing. In any event, the trial court found trial
counsel's testimony at the PCR hearing "believable and . . .
credible." The trial court's credibility determination is
supported by sufficient credible evidence on the record, so we
will not disturb it. State v. Gamble, 218 N.J. 412, 424 (2014).
Having concluded defense counsel made a strategic decision
not to present Dr. Adams as a trial witness, we affirm the trial
court's denial of defendant's PCR petition. Fritz, supra, 105
N.J. at 54.
Affirmed.
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STATE OF NEW JERSEY VS. ALBERTO SALAZARÂ (01-03-0349, MIDDLESEX COUNTY AND STATEWIDE)
Combined Opinion