NOT FOR PUBLICATION WITHOUT THE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-0487-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MYRNA DIAZ,
Defendant-Appellant.
__________________________
Submitted September 28, 2017 – Decided October 30, 2017
Before Judges Simonelli and Haas.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 07-08-3025.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven E. Braun, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Myrna Diaz appeals from the August 21, 2015 Law
Division order, which denied her motion for a new trial and
petition for post-conviction relief (PCR). On appeal, defendant
raises the following contentions:
POINT I: THE PCR COURT SHOULD HAVE GRANTED
A NEW TRIAL BECAUSE OF THE STATE'S
DISCOVERY VIOLATION.
POINT II: THE [DEFENDANT] WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND
ARTICLE I, PARAGRAPH 10 OF THE NEW
JERSEY CONSTITUTION.
A. Interview with Assistant
Prosecutor Khan.
B. Counsel's failure to demand a
hearing regarding the Marshell
Milliner statement and to locate
and present Ms. Milliner as a
witness.
C. Conclusion regarding the
ineffective assistance of
[trial counsel].
POINT III: [DEFENDANT] WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL AS A RESULT
OF THE INCOMPETENT EFFORTS OF THE
ATTORNEYS OF THE "PROJECT FREEDOM
FUND (PFF)" WHO INDUCED HER TO
WITHDRAW HER PLEA OF GUILTY,
THEREBY FORFEITING HER PLEA
BARGAIN WHICH HAD ENSURED HER A
MAXIMUM [FIFTEEN-]YEAR SENTENCE,
AND RESULTING IN A JURY TRIAL
WHERE SHE WAS CONVICTED AND
SENTENCED TO A TERM OF [FORTY]
YEARS.
POINT IV: [DEFENDANT'S] APPELLATE COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE
2 A-0487-15T2
OF COUNSEL IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS OF
THE UNITED STATES CONSTITUTION AND
ARTICLE I, PARAGRAPH 10 OF THE NEW
JERSEY CONSTITUTION.
POINT V: CUMULATIVE ERROR REQUIRED A NEW
TRIAL.
POINT VI: THIS COURT SHOULD CONSIDER ALL
OTHER POINTS WHICH [DEFENDANT]
CONSIDERS TO BE RELEVANT TO THE
INSTANT APPEAL.
We reject these contentions and affirm.
A grand jury indicted defendant for felony murder, N.J.S.A.
2C:11-3(a)(3) (count one); first-degree robbery, N.J.S.A. 2C:15-1
(count three); two counts of fourth-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(d) (counts four and six); two counts
of third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (counts five and seven); second-degree
burglary, N.J.S.A. 2C:18-2 (count eight); second-degree conspiracy
to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count
nine); and fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)
(count ten). Co-defendants Mark Warner and McDonald Williams were
separately charged in count two with felony murder, N.J.S.A. 2C:11-
3(a)(1) and (2).
The charges against defendant stemmed from her involvement
in the robbery and murder of Jose Cabrera at his auto repair shop
in Newark on Sunday, October 8, 2006. Cabrera kept two cell
3 A-0487-15T2
phones with him at all times, but they were not found on the
premises after the robbery/homicide. A police investigation
revealed that after Cabrera's death, one of his cell phones was
used to call Warner and his credit card was used at three local
stores and a gas station. A surveillance video from a Stop & Shop
showed defendant with Warner bagging groceries and Warner swiping
Cabrera's credit card at the register.
In a recorded statement to the police, defendant denied having
any knowledge about what had happened to Cabrera or using Cabrera's
credit card at the Stop & Shop after his death. In a second
recorded statement, she admitted Cabrera was her former boyfriend
and she was at his shop. After she left the shop, she saw Warner
and Williams at the corner and they stopped to ask her about the
shop. She knew both men and had been sexually intimate with
Williams for two to three weeks. She said Williams refused to let
her leave and forced her to go to Cabrera's shop. Warner entered
the shop and punched Cabrera in the face. Warner and Williams
wanted Cabrera to open the safe, but he refused. The men then
punched Cabrera, hit him with a long metal piece, and said they
would slit her throat if he did not open the safe. Williams
continued hitting Cabrera as Warner took her to the garage and
held a knife to her throat. When Williams exited the shop, his
boots were bloody. As she left, she saw Cabrera lying on the
4 A-0487-15T2
floor in a pool of blood. She admitted Cabrera's credit cards
were taken and that she used one of the cards with Warner to
purchase food at the Stop & Shop.
Warner's girlfriend, Marshell Milliner, gave a recorded
statement to the police, which the State claimed was inadvertently
destroyed. However, the State provided a police report indicating
that Milliner said defendant and Williams came together to her
apartment with credit cards and cell phones, which they removed
from a bag. The report also indicated Milliner said the group
then went to the Stop & Shop and later returned to her apartment
and smoked marijuana.
On September 30, 2008, defendant pled guilty to count one,
amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-
4, and count three, first-degree robbery, and agreed to testify
truthfully against her co-defendants. In exchange, the State
agreed to recommend a term of imprisonment not to exceed fifteen
years with an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In her factual basis, defendant admitted that she went with Warner
and Williams to Cabrera's shop on October 8, 2006 to commit a
robbery; the two men assaulted Cabrera in an attempt to get him
to open his safe; she knew it was foreseeable that they could use
force in committing the robbery; they did not care if Cabrera
5 A-0487-15T2
lived or died while they were hitting him; and Cabrera died as a
result of his injuries. Defendant also admitted that Warner and
Williams took some items from Cabrera during the robbery, and she
received Cabrera's credit after the robbery and used it once.
Prior to sentencing, in January 2009, Assistant Prosecutor
Naazneen Khan interviewed defendant regarding her claims about a
correction officer's sexual harassment and official misconduct.
Trial counsel declined to be present at the interview because it
did not concern the robbery/homicide. During the interview,
defendant began discussing the robbery/homicide, despite being
advised she did not have to do so. Defendant told Kahn that she
drove Warner and Williams to Cabrera's shop and knew that a robbery
was going to take place, but stayed in the car during the entire
incident. She denied knowing the men intended to harm Cabrera.
Over a year later, and against trial counsel's advice, on
February 5, 2010, defendant filed a pro se motion to withdraw her
guilty plea. Defendant also sought to relieve trial counsel from
representing her. Defendant certified she was innocent; was with
a female friend at the time of the crimes; was coerced and
threatened into pleading guilty; and her two statements to the
police and factual basis at the plea hearing were false. With the
State's consent, the court granted the motion and assigned
defendant new counsel.
6 A-0487-15T2
Prior to trial, new trial counsel moved to suppress
defendant's two statements to the police and her statements to
Kahn. Following a Miranda1 hearing, the trial judge ruled the two
statements to the police were admissible. The judge also ruled
defendant's statements to Kahn were inadmissible on the State's
case-in-chief, but the State could use the statement on rebuttal
if defendant testified.
Defendant testified on her own behalf. She proclaimed her
innocence and testified that she was with Milliner in Milliner's
apartment when robbery/homicide occurred, and first saw Warner and
Williams when they arrived at the apartment with a shopping cart
filled with a number of items, including Cabrera's credit cards.
She did not know how Warner and Williams obtained the credit cards,
but admitted she twice used the card because they threatened her
and her children.
Defendant also testified she was high on drugs and confused
about her Miranda rights when she gave her statements to the police
and only gave the statements because she wanted to leave. She
maintained she was not present when Cabrera was beaten and murdered
and did not tell Williams and Warner that he had a safe. She also
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
7 A-0487-15T2
testified that Milliner was involved with the credit cards as
well.
On cross-examination, defendant admitted she met Warner and
Williams three weeks prior to the robbery/homicide, was intimate
with Williams at the time of the crimes, and was previously
intimate with Cabrera and knew he had a safe in his shop. She
also admitted that Cabrera closed his shop on Sundays, but she
arranged for him to have the shop open so he could look over her
nephew's truck. She also was able to describe a knife and grease-
pump found at the scene in specific detail. On rebuttal, Kahn
testified about defendant's statements during the January 2009
interview.
The jury found defendant guilty of all charges. The trial
judge imposed an aggregate forty-year term of imprisonment subject
to NERA. Defendant appealed her conviction and sentence. We
affirmed, and our Supreme Court denied certification. State v.
Diaz, No. A-4378-10 (App. Div. Nov. 18, 2013), certif. denied, 218
N.J. 275 (2014).
Defendant later discovered that Milliner's recorded statement
was not destroyed. She filed a motion for a new trial, arguing
8 A-0487-15T2
the State committed discovery and Brady2 violations when it failed
to produce Milliner's recorded statement. She maintained her
innocence and reiterated she was with Milliner at the time of the
robbery/homicide. Defendant argued that Milliner's statement was
newly-discovered exculpatory evidence that would have changed the
outcome of the trial.
Defendant also filed a PCR petition, again raising the State's
discovery violation, and also arguing that trial counsel rendered
ineffective assistance by failing to be present during the Kahn
interview, demand a hearing regarding the State's discovery
violation, and locate and call Milliner as an alibi witness at
trial. Defendant also argued she was deprived of her Sixth
Amendment3 right to counsel when Project Freedom Fund, "a phony
nonprofit organization[,]" advised her to retract her guilty plea.
She further argued that appellate counsel rendered ineffective
assistance by failing to raise on appeal the State's use of her
statements to Kahn on rebuttal.
In a comprehensive August 19, 2015 written opinion, Judge
Martin Cronin denied defendant's motion for a new trial. The
judge found the State provided the police report, which gave the
2
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963).
3
U.S. Const. amend VI.
9 A-0487-15T2
substance of Milliner's recorded statement, and the report
revealed Milliner possessed information that undermined the alibi
theory defendant articulated at trial.
After reviewing the transcript of Milliner's recorded
statement, Judge Cronin determined it was not exculpatory, but
rather, inculpatory. Milliner said she was home alone on the day
of the robbery/homicide and first saw defendant when defendant
entered her apartment that evening with Williams, jointly
possessing money, cell phones, and several credit cards. The
judge found that since the robbery/homicide occurred earlier that
day, Milliner's statement undermined defendant's trial testimony
that she was with Milliner at the time of the robbery/homicide.
The judge concluded Milliner's statement would not have changed
the outcome of the trial.
Judge Cronin also denied defendant's PCR petition without an
evidentiary hearing. The judge found defendant could not prove
trial counsel was ineffective for failing to demand a hearing
regarding the State's discovery violation or locate and call
Milliner as an alibi witness. The judge noted that Milliner's
effective denial that she was with defendant at the time of the
robbery/homicide was clearly inconsistent with defendant's alibi
theory. The judge concluded:
10 A-0487-15T2
In view of this inconsistency as
reflected in available discovery, any trial
counsel decision not to locate or further
interview Ms. Milliner "falls within the wide
range of reasonable professional assistance"
which is not actionable under [the first prong
of] Strickland [v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].
Additionally, in light of the inculpatory
effect of Ms. Milliner's statement . . . and
the overwhelming evidence of guilt . . .
[defendant] also fails to establish prejudice
as required by Strickland's second prong.
Judge Cronin also found defendant could not prove trial
counsel was ineffective for failing to be present at the Kahn
interview. The judge concluded defendant had no Sixth Amendment
right to counsel concerning her claims of sexual harassment and
official misconduct that were unrelated to the criminal charges,
and she chose to speak to Kahn about the homicide/robbery after
advised she did not have to do so.
Judge Cronin found that even if defendant had a right to
counsel at the Kahn interview, she could not satisfy the second
Strickland prong -- that counsel's deficient performance
prejudiced the defense. The judge noted that defendant gave three
different accounts of her involvement in the crimes, and admitted
that she lied to the police. The judge determined it was unlikely
a jury would have found defendant's exculpatory version credible
even absent Kahn's testimony, especially in light of the
11 A-0487-15T2
overwhelming evidence against defendant, including her own
admissions during cross-examination.
Judge Cronin found appellate counsel had no obligation to
challenge the State's use of defendant's statement to Kahn on
rebuttal. Citing Kansas v. Ventris, 556 U.S. 586, 594, 129 S. Ct.
1841, 1847, 173 L. Ed. 2d 801, 809 (2009), the judge concluded
that statements obtained in contravention of a defendant's Sixth
Amendment right to counsel are admissible to challenge his
inconsistent testimony at trial.
Judge Cronin rejected defendant's claim she was deprived of
her Sixth Amendment right to counsel during her motion to withdraw
her guilty plea. The judge found defendant filed the motion pro
se and against trial counsel's advice, and could not convert her
own bad decision making into a constitutional violation. Citing
State v. Taccetta, 200 N.J. 183, 200 (2009), the judge concluded
defendant could not withdraw her guilty plea and plead guilty
because she certified that she was innocent and the factual basis
for her guilty plea was false. This appeal followed.
"[A] motion for a new trial is addressed to the sound
discretion of the trial judge, and the exercise of that discretion
will not be interfered with on appeal unless a clear abuse has
been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div.
2000). "An abuse of discretion only arises on demonstration of
12 A-0487-15T2
manifest error or injustice[,]" State v. Torres, 183 N.J. 554, 572
(2005), and occurs when the trial judge's "decision is 'made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'"
Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)
(quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
To obtain a new trial based on newly-discovered evidence, the
defendant must establish the new "evidence is (1) material, and
not 'merely' cumulative, impeaching, or contradictory; (2) . . .
was discovered after completion of the trial and 'was not
discoverable by reasonable diligence beforehand;'" and (3) could
"probably change the jury's verdict if a new trial [was] granted."
State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter,
85 N.J. 300, 314 (1981)).
The mere raising of a claim for PCR 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).
Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a
prima facie claim of ineffective assistance, material issues of
disputed facts lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
343, 355 (2013). We review a judge's decision to deny a PCR
13 A-0487-15T2
petition without an evidentiary hearing for abuse of discretion.
State v. Preciose, 129 N.J. 451, 462 (1992).
To establish a prima facie claim of ineffective assistance
of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors "so
serious that 'counsel' was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment." An attorney's
representation is deficient when it [falls]
below an objective standard of reasonableness.
Second, a defendant "must show that the
deficient performance prejudiced the
defense." A defendant will be prejudiced when
counsel's errors are sufficiently serious to
deny him a "fair trial." The prejudice
standard is met if there is "a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different." A
"reasonable probability" simply means a
"probability sufficient to undermine
confidence in the outcome" of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (quoting
Strickland, supra, 466 U.S. at 687-88, 694,
104 S. Ct. at 2064, 2068, 8 L. Ed. 2d at 693,
698).]
"In order to establish a prima facie claim, [the defendant] must
do more that make bald assertions that he was denied the effective
assistance of counsel. He must allege facts sufficient to
demonstrate counsel's alleged substandard performance." Cummings,
supra, 321 N.J. Super. at 170. The defendant must establish, by
14 A-0487-15T2
a preponderance of the credible evidence, that he is entitled to
the required relief. State v. Nash, 212 N.J. 518, 541 (2013).
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
Judge Cronin expressed his cogent written opinion. We discern no
abuse of discretion in the denial of defendant's motion for a new
trial and PCR petition.
Affirmed.
15 A-0487-15T2