STATE OF NEW JERSEY VS. FERNANDO CHIRENO (08-09-1216, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3963-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FERNANDO CHIRENO,

Defendant-Appellant.
_____________________________

Argued March 13, 2019 – Decided April 3, 2019

Before Judges Fuentes, Accurso and Vernoia.

On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 08-09-1216.

Joseph V. Saykanic, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Joseph V. Saykanic, on the brief).

Marc A. Festa, Senior Assistant Prosecutor, argued the
cause for respondent (Camelia M. Valdes, Passaic
County Prosecutor, attorney; Marc A. Festa, of counsel
and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Fernando Chireno appeals from the denial of his petition for

post-conviction relief (PCR), following an evidentiary hearing at which his trial

counsel testified. Because the PCR court was correct to find defendant failed to

establish either prong of the Strickland 1 standard, we affirm.

Defendant murdered his estranged wife in front of her home in Passaic

with an ax he purchased at Home Depot for the purpose several hours before.

Police found their baby sleeping inside and their five- and seven-year-old

daughters huddled together under a blanket. The jury heard an eyewitness

account of the neighbor, who saw from her window defendant chase his

screaming wife into the street while striking her repeatedly with what the

neighbor thought was a bat.

The jury was also presented with the testimony of the victim's sister, who

claimed defendant was incensed by his wife's refusal to dismiss the domestic

violence restraining order she had recently obtained against him. The sister

testified defendant demanded to know where his wife was and threatened her

life in the days before her death. The jury also viewed security video from Home

Depot of defendant selecting the ax, as well as a video the victim made of

1
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
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defendant months before her death of him threatening to kill her while wielding

a large knife. The victim can be heard on the video saying she was recording

defendant's threats for her family to give to the police after defendant kills her.

The jury also heard a recording of a telephone call defendant made to his mother-

in-law a year after the murder confessing he killed her daughter out of blinding

jealousy and begging her forgiveness.

Most bizarrely, it heard the testimony of a cab driver who had driven the

victim's brother to where she was murdered shortly after she was killed. The

brother showed the driver a picture of defendant, saying he was sure he was the

murderer, and if the driver ever saw him he should call the police. Shortly after

dropping the brother off, the driver did see defendant standing on a street corner

a few blocks away. Defendant got into the cab and asked to be taken across

town. Instead, the cab driver drove defendant to the scene, where the driver

jumped from the cab, calling to police. The driver testified that when defendant

realized where the cab was headed, he said "this son of a bitch is going to have

me arrested." As police handcuffed defendant, a small crowd, including

members of the victim's family, rushed over. The arresting officer testified

defendant immediately admitted he had killed his wife and said to him in

Spanish, "the family of my wife is going to kill me."

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 Because defendant admitted he killed his wife, the trial was largely a battle

between two experts over whether he was legally responsible for his conduct.

Defendant's expert, Robert Latimer, a board-certified psychiatrist, testified

defendant had long suffered from a schizophrenic disorder, paranoid type,

manifested by delusions, hallucinations, conjugal paranoia and grandiosity. As

we noted in our opinion on direct appeal, "[i]n Dr. Latimer's opinion, defendant

killed his wife unwittingly because 'he was doing what God told him' and did

not appreciate that it was wrong." State v. Chireno, No. A-3733-10 (App. Div.

July 18, 2014) (slip op. at 11). Dr. Latimer testified defendant killed his wife

while in the grip of an acute psychotic state.

The State's forensic psychiatrist, Daniel Greenfield, agreed defendant

suffered from a psychotic thought disorder, but did not believe defendant's

symptoms were acute or schizophrenic. In his view, defendant was feigning his

symptoms; a view shared by the psychiatrist who examined defendant in the

hours after the murder. Dr. Greenfield testified "defendant's actions before and

after the killing showed a deliberate plan inconsistent with an active psychosis

and response to hallucinations and further demonstrated his understanding of the

nature, quality and wrongfulness of his actions." Ibid. Dr. Greenfield's view

was that defendant killed his wife out of jealousy.

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 Defendant testified in his own behalf, describing his long history of

mental illness and the inadequate and inhumane treatment he received growing

up in the Dominican Republic. He claimed he killed his wife because he was

commanded to do so by voices in his head that started after he saw her having

sex with her cousin. Defendant told the jury he saw his wife in the courtroom

and read aloud several letters he had written to her.

The trial judge instructed the jury to consider evidence of defendant's

mental condition in determining whether the State established the mental state

required for proof of each crime charged, N.J.S.A. 2C:4-2, and on the defense

of insanity and charged on provocation manslaughter, reckless manslaughter and

aggravated manslaughter as well as murder. Chireno, slip op. at 3. The jury

convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2);

second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d), second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a); and, in a bifurcated proceeding, of

committing the murder by his own conduct, during the commission of a burglary

and in violation of a domestic violence restraining order, N.J.S.A. 2C:11-

3(b)(4)(g), and contempt of a domestic violence restraining order, N.J.S.A.

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2C:29-9(b)(1). Chireno, slip op. at 2-3. After appropriate mergers, the judge

sentenced defendant to a mandatory term of life without parole for the murder,

N.J.S.A. 2C:11-3(b)(4)(g), and to a consecutive ten-year term for endangering.

Chireno, slip op. at 3.

Defendant appealed, arguing the trial judge erred in failing to instruct the

jury that a continuing course of ill treatment of defendant by his wife could

support a passion/provocation verdict. Id. at 12. In his supplemental pro se

submissions, defendant raised another seven issues, some with several sub-

points, including allegations of error in the failure to supplement the record with

evidence in support of defenses of insanity and diminished capacity, failure to

declare a mistrial, objections to the verdict sheet and the court's findings on

sentencing and his objections to the continuing service of a juror who did not

deliberate. Id. at 12-14. We rejected all of the arguments as without sufficient

merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirmed

defendant's conviction and sentence. Chireno, slip op. at 17-18. The Supreme

Court denied defendant's petition for certification. State v. Chireno, 220 N.J.

269 (2015).

Defendant filed a timely petition for PCR claiming his trial counsel was

ineffective for having failed to obtain defendant's psychiatric records from the

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Passaic County jail and provide them to Dr. Latimer and that newly discovered

evidence, namely his psychiatric records from the Department of Corrections,

both of which show defendant suffers from schizophrenia, chronic paranoid

type, demonstrate he was wrongly convicted. Additionally, defendant asserted

he was denied effective assistance of counsel and the right to a fair trial by being

forced to appear unshaven and in inappropriate clothes, which prejudiced him

before the jury. He also claimed his counsel failed to object to a member of the

jury attending a barbeque in the course of the trial with a family member of the

prosecuting attorney, which defendant asserted tended to show bias on the part

of the juror and possible conflict on the part of the prosecutor.

Judge Reddin, who presided over defendant's trial, conducted an

evidentiary hearing on defendant's petition. Although finding defendant had not

established a prima facie case of ineffective assistance entitling him to an

evidentiary hearing, see State v. Preciose, 129 N.J. 451, 462-64 (1992), the judge

nevertheless determined to conduct a hearing for the purpose of having

defendant's trial counsel testify.

Trial counsel testified he had practiced law for over fifteen years at the

time of defendant's trial and limited his practice to criminal defense. He

estimated he had tried well over fifty cases, including fifteen murder trials. He

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testified the State was unwilling to extend any plea offer and, in light of the

State's evidence, the only viable defense in his view was insanity. Counsel

testified to finding defendant "a very disturbed person," and explained he

retained Dr. Latimer to examine defendant and opine as to whether defendant

could be classified as legally insane. Trial counsel asserted he obtained

defendant's psychiatric records from the jail at his request, and they were

provided to both testifying experts. He also testified he made a motion for

mistrial based on jury taint at defendant's behest, although he did not believe it

should or would succeed, but did not consider a motion for judgment

notwithstanding the verdict as it would have been frivolous.

After reviewing the trial record, defendant's petition and the briefs and

hearing trial counsel's testimony and the argument of counsel, Judge Reddin

denied the petition in a decision on the record. The judge found trial counsel a

very experienced criminal defense lawyer and a credible witness. The judge

recounted the overwhelming evidence the State presented, not only of the facts

of the murder, but also defendant's plan to kill his wife and the number of

purposeful steps required to execute it. The judge recounted defendant's effort

to escape and his response to the cab driver driving him back to the scene and

his statement to the officer that his wife's family were going to kill him as

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powerful evidence of defendant's understanding of the nature and quality of his

acts and "that what he was doing was wrong."

The judge reviewed the testimony of the experts, both of whom he found

well prepared and presented clear and cogent testimony. He found Dr. Latimer,

in particular, an exceptionally good witness, whose opinion the jury simply

rejected. Although acknowledging the testimony of trial counsel that he

provided the experts with defendant's psychiatric records from the jail, the judge

deemed them irrelevant, as too distant from the events of the days leading up to

the murder. The judge found that especially true in light of defendant being

examined by a psychiatrist at a local hospital shortly after the murder and found

to be feigning symptoms of acute psychosis.

Finally, the judge rejected as untrue defendant's claims of being unkempt

and ill-clothed in front of the jury, noting he commented on defendant's

appropriate attire nearly every day of the trial on the record before the jury was

seated. He also dismissed as untrue that the prosecutor, or any member of her

family, had any contact with a juror. The judge noted he voir dired the juror on

the record and denied defense counsel's motion for mistrial, a decision affirmed

on appeal. The judge rejected defendant's claim that his trial counsel was in any

manner deficient, or that defendant was in any way prejudiced by anything his

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counsel did or did not do at trial. Finding no merit in any of defendant's claims

under the Strickland test, the judge denied defendant's petition.

Defendant appeals, reprising the arguments he made to the trial court. He

casts the issues as follows:

POINT I

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] SINCE
NEWLY OBTAINED EVIDENCE BY PCR
COUNSEL—NAMELY, DEFENDANT'S MENTAL
HEALTH RECORDS FROM THE NEW JERSEY
DEPARTMENT OF CORRECTIONS (DOC) AND
NEW JERSEY STATE PRISON (NJSP) REVEAL
THAT DEFENDANT'S CONVICTION WAS BASED
ON A MISDIAGNOSIS OF MALINGERING, AND
HAD THE JURY BEEN INFORMED THAT, IN
REALITY, DEFENDANT WAS AFFLICTED WITH
CHRONIC PARANOID SCHIZOPHRENIA, IT
WOULD HAVE FOUND HIM NOT GUILTY BY
REASON OF THIS INSANITY.

POINT II

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] SINCE
NEWLY OBTAINED EVIDENCE BY PCR
COUNSEL—NAMELY, DEFENDANT'S MENTAL
HEALTH RECORDS FROM THE PASSAIC
COUNTY JAIL (PCJ) REVEAL THAT
DEFENDANT'S CONVICTION WAS BASED ON A
MISDIAGNOSIS OF MALINGERING, AND HAD
THE JURY BEEN INFORMED THAT, IN REALITY,
DEFENDANT WAS AFFLICTED WITH CHRONIC
PARANOID SCHIZOPHRENIA IT WOULD HAVE

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 FOUND HIM NOT GUILTY BY REASON OF THIS
INSANITY.

POINT III
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] AS HE WAS
DEPRIVED OF HIS DUE PROCESS RIGHT TO A
FAIR TRIAL AS HE WAS FORCED TO APPEAR AT
TRIAL IN AN UNKEMPT, UNSHAVEN STATE,
AND WHILE WEARING A WRISTBAND
IDENTIFYING HIM AS BEING INCARCERATED.

POINT IV

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] AS THE
ASSISTANT PROSECUTOR WHO TRIED THE
CASE ATTENDED A BARBECUE AT WHICH SHE
SHARED A TABLE WITH A JURY MEMBER; THE
PROSECUTORIAL MISCONDUCT DEPRIVED
DEFENDANT OF HIS RIGHT TO A FAIR AND
IMPARTIAL JURY AND TO DUE PROCESS.

POINT V

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF AS TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO MOVE FOR A
JUDGMENT OF ACQUITTAL AT THE END OF THE
STATE'S CASE.

In his pro se supplemental brief, defendant further argues:

POINT I

THE DEFENDANT'S CONVICTIONS MUST BE
VACATED AS THE DEFENDANT WAS DEPRIVED

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OF HIS SIXTH AMENDMENT AND NEW JERSEY
STATE CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL DUE TO HIS TRIAL
COUNSEL'S FAILURE TO INVESTIGATE OR
ASSERT THE DEFENSE OF DIMINISHED
CAPACITY (MENTAL DISEASE OR DEFECT); AT
THE VERY LEAST, THERE MUST BE AN
EVIDENTIARY HEARING; U.S. CONST. AMEND.
VI; N.J. CONST. (1947) ART. 1, PAR. 10
(PARTIALLY RAISED BELOW)

POINT II

DEFENDANT'S PETITION FOR [PCR] SHOULD BE
GRANTED AS THE DEFENDANT'S SENTENCE IS
ILLEGAL AS THE SENTENCING JUDGE FAILED
TO CONSIDER ANY MITIGATING FACTORS.

A. AGGRAVATING FACTORS DID NOT APPLY
AND THE COURT DID NOT OBTAIN THE
CONSENT OF THE DEFENDANT.

B. DE NOVO REVIEW IS SOUGHT TO RESOLVE
THIS ILLEGAL SENTENCE.

C. THE IMPOSITION OF THE LIFE WITHOUT
PAROLE SENTENCE MANDATES THAT THE
"NO EARLY RELEASE ACT" IS ILLEGAL AND
UNCONSTITUTIONAL.

POINT III

THE ISSUES RAISED ON DIRECT APPEAL
ALONG WITH THE ISSUES RAISED ON
COLLATERAL REVIEW SATISFY BOTH PRONGS
OF THE STRICKLAND/FRITZ STANDARD, IF NOT
PRESUMED PREJUDICE UNDER CRONIC (AND
ESTABLISH THAT THE DEFENDANT WAS

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 DEPRIVED OF HIS SIXTH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL) EITHER INDIVIDUALLY OR
CUMULATIVELY MANDATING A REVERSAL OF
CONVICTIONS OR, AT THE VERY LEAST, A
REMAND FOR FURTHER POST-CONVICTION
PROCEEDINGS (PARTIALLY RAISED BELOW).

POINT IV

PCR COUNSEL VIOLATED R. 3:22-6(D)
REQUIRING A REMAND AND FURTHER
EVIDENTIARY HEARINGS (NOT RAISED
BELOW).

Our review of the record convinces us that none of those arguments is of

sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).

Judge Reddin carefully considered each of the claims raised by defendant's

counsel. We agree with his finding that defendant failed to demonstrate the

performance of his trial counsel was substandard or that, but for any alleged

errors, the result would have been different. See Strickland, 466 U.S. at 687-

88, 694.

As to defendant's supplemental claims, the jury was charged on

diminished capacity as noted in our opinion on direct appeal. See Chireno, slip

op. at 3 ("the judge instructed the jury on its obligation to consider evidence of

defendant's mental condition in determining whether the State established the

mental state required for proof of each crime charged, N.J.S.A. 2C:4-2").

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Defendant's sentence is not illegal, and we have already addressed the claims of

error raised in this matter and on direct appeal. Finally, we find no merit to

defendant's claim that his counsel violated Rule 3:22-6(d).

Affirmed.

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