STATE OF NEW JERSEY VS. JORGE ALVARADO (03-07-1190, HUDSON COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0409-19
A-2252-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JORGE ALVARADO,
Defendant-Appellant.
_________________________
Argued February 11, 2021 - Decided September 1, 2021
Before Judges Ostrer, Accurso, and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 03-07-1190.
Jorge Alvarado, appellant, argued the cause pro se.
Joseph E. Krakora, Public Defender, attorney for
appellant in A-0409-19 (Karen A. Lodeserto,
Designated Counsel, on the brief).
Stephanie Davis Elson, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez, Hudson
County Prosecutor, attorney; Stephanie Davis Elson, on
the briefs).
Appellant filed a pro se supplemental brief in A-0409-
19.
PER CURIAM
In these two matters, calendared back-to-back and consolidated for our
opinion, defendant Jorge Alvarado appeals in A-0409-19 from the denial of his
first petition for post-conviction relief (PCR) following our remand for an
evidentiary hearing, and in A-2252-19 from the denial of his second petition,
filed while the first was pending, based on the United States Supreme Court's
opinion in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). We affirm both
decisions.
This case has a long procedural history; indeed, this is the fourth opinion
we've written over the course of thirteen years. Defendant was convicted in
2004 of the murder of seventeen-month-old Jan Carlos Torres, the son of his
girlfriend Maria del Carmen Torres. In our first opinion affirming defendant's
conviction on direct appeal, State v. Alvarado (Alvarado I), No. A-6010-05
(App. Div. Mar. 6, 2008) (slip op. at 1-6), we sketched the facts the State
presented at trial. A pediatric forensic pathologist from the State's Regional
Medical Examiner's Office testified the child died from suffocation, most likely
A-0409-19
2
caused by the squeezing or compression of the child's chest. Id. at 3-4. The
expert testified
[t]he injuries he found were not consistent with
punching; rather, they were consistent with pressing or
placing pressure on the child. Further, he found that
rather than one mechanism, three mechanisms or steps
were involved on the day of the death: the child had
been squeezed in the chest, pushed up on the face, and
injured on his left thigh. The doctor estimated that it
would take roughly one minute for the child to die with
consistent squeezing. Death would be slower and more
painful if the compression stopped before death.
[Id. at 4.]
The pathologist also testified the child was a victim of battered child
syndrome "on the basis that the injuries were repetitive (occurred on more than
one occasion) and could not have occurred accidentally." Id. at 3. The
postmortem exam revealed a rib fracture suffered a month or so before the
child's death, and more recent bruising. Id. at 3-4. The pathologist could not
say, however, "whether the child had been injured at two separate times or more
times than that." Id. at 4.
Although both defendant and the child's mother had been indicted for
murder, defendant did not dispute that he was the one alone with the child in the
hours before his death. Id. at 2, 11. Defendant did not testify, but the trial record
contains several statements attributed to him about what happened. Id. at 3.
A-0409-19
3
In his statement to the police, defendant said he "pressed the child to his
chest when the baby began to cry," laying him on the bed when he quieted. Id.
at 2. He claimed he did not intend to kill the child, and said his bruises were the
result of a struggle defendant had with the child's mother when she had tried to
take the baby from him the previous night. Id. at 2-3. An ex-girlfriend of
defendant's claimed he told her he was playing with the baby, tossing him in the
air, when defendant slipped and couldn't catch him. Id. at 3. Finally, a fellow
inmate in the jail testified defendant said he slammed the baby into the wall and
punched him in the chest when he wouldn't stop crying, "but miscalculated,
causing the baby to hit the bedpost and fall to the floor." Ibid.
Following an N.J.R.E. 104 hearing, the child's mother, Torres, who had
by then pleaded guilty to endangerment, was allowed to testify about harm she
claimed defendant had inflicted on the baby on prior occasions. Id. at 4. She
testified she found bruises on the boy after he'd been in defendant's care and
once found the baby with a bloody mouth, which defendant said resulted from
the baby hitting himself with a toy. Ibid. She also claimed she once "discovered
hot sauce on the nipple to the baby's bottle," which, according to her , defendant
admitted doing "as a practical joke." Id. at 4-5. She testified about another time
A-0409-19
4
when she "found melting ice cubes in the baby's diaper after defendant had left
for work." Id. at 5.
We affirmed defendant's conviction, rejecting his arguments under
N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992), that the judge
erred in allowing the State to introduce Torres's testimony that defendant had
previously assaulted the child; in instructing the jury on that evidence; and in
failing to give a limiting instruction about the use the jury could make of the
guilty plea entered by Torres. Id. at 4-13. With regard to the 404(b) evidence,
we noted the trial judge's finding that
[w]ithout this testimony, [he] could see a reasonable
juror wondering, hmm, was this a mistake, was
[defendant] just trying to be quiet with the baby. Was
there a tug-of-war between mom and Mr. Alvarado or
was there something more and it is probative to the
issue of knowledge and intent which goes to the charge
of murder. Knowledge, intent and purpose.
[Id. at 8.]
While acknowledging the evidence was certainly prejudicial, we noted
"[e]vidence that is highly inflammatory may still be admitted where its probative
value outweighs its prejudicial effect," relying on State v. Cusick, 219 N.J.
Super. 452, 464-65 (App. Div. 1987), and agreed with the trial judge that
A-0409-19
5
Torres's evidence "was material on the question of whether the injuries to the
child were intentional or accidental." Id. at 8-9.
The Supreme Court denied defendant's petition for certification. State v.
Alvarado, 195 N.J. 521 (2008), and defendant's federal habeas petition was
deemed untimely, Alvarado v. D'Ilio, No. 15-3878 (SRC) (D.N.J. Aug. 23,
2016), aff'd sub nom. Alvarado v. Adm'r N.J. State Prison, No. 16-3798, 2017
U.S. App. LEXIS 20661 (3d Cir. Sept. 11, 2017).
In our second opinion, State v. Alvarado (Alvarado II), No. A-0861-12
(App. Div. May 1, 2014), we addressed defendant's petition for PCR alleging
ineffective assistance of trial and appellate counsel, which the trial court had
denied in 2012 without an evidentiary hearing. We affirmed the decision
dismissing defendant's claims relating to the performance of his trial counsel,
reversed as to the claims defendant raised regarding the representation he was
provided on appeal, and remanded for an evidentiary hearing. Id. at 22. The
Supreme Court again denied defendant's petition for certification. State v.
Alvarado, 220 N.J. 42 (2014).
Defendant's claims of ineffective assistance of appellate counsel were
based on a letter he received from Torres six months after the end of defendant's
trial while he was awaiting sentencing. Torres was at the time serving her own
A-0409-19
6
prison sentence. Quoting a key passage, we noted Torres wrote to defendant
that she
was always very stern with the poor boy, that hurts me
a lot, but I think you were guilty, because you always
liked to leave me alone and you left with your friends
and I came to think that you had someone else, that
made me mad, very angry, Luis, you have no idea "yes"
I punished that boy, but it was not to kill him, I knew
he had several black and blue marks, and that is why
they put me in jail, because I had said I knew of the
blows and the black and blue marks, and by not
[calling] the police, I know, you did not know about it,
but because of that the prosecutor asked me to give the
last statement, so they could find you guilty, as I said,
I had no other option, I had to do something to save
myself, I did not want it, but if I did not do it, the
prosecutor would not take the charges away from me,
forgive me. Now, I know you are thinking in appealing
your case, that means if you do it, perhaps I had to
testify again and I will have to say same thing, because
of the deal with the prosecutor. Luis, it was not easy
for me to take the decision of writing you, but I feel that
everything is happening in someway is my fault, I know
you were right in willing to go to trial and to know how
everything happened and where all these blows came
from, the broken rib that [he] had for several months.
[Alvarado II, slip op. at 19-20.]
Defendant claimed the letter was a recantation of Torres's testimony, and
he moved, with new counsel, for a new trial based on newly discovered
evidence. The judge denied the motion without an evidentiary hearing, finding
Torres's trial testimony "extremely credible and straightforward." The judge
A-0409-19
7
stated he didn't "find her 'recantation' to be credible," and indeed didn't "even
find it to be a recantation." He denied the motion, finding defendant had not
carried his burden under State v. Carter, 85 N.J. 300, 314 (1981) (holding "to
qualify as newly discovered evidence entitling a party to a new trial, the new
evidence must be (1) material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the trial and not discoverable
by reasonable diligence beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted."). Alvarado II, slip op. at
9-10.
We did not agree that defendant's PCR petition, as to appellate counsel's
performance, could be denied without an evidentiary hearing. We found the
letter "could be read as an effort [by Torres] to assuage her conscience and
excuse herself for having testified truthfully against Alvarado," but could "also
be read as an apology and explanation for having testified untruthfully with
respect to some or all of her testimony." Id. at 19. Because Alvarado easily met
the first two Carter factors, and Torres's statements, interpreted most favorably
to Alvarado, see State v. Preciose, 129 N.J. 451, 463 (1992), would make the
letter "highly material, particularly with respect to whether Alvarado's conduct
on the day of the underlying incident amounted to murder or one of the lesser
A-0409-19
8
included offenses charged to the jury, which were aggravated manslaughter an d
reckless manslaughter," the very reason the trial judge admitted the evidence
Torres offered at trial, we remanded for an evidentiary hearing, "to evaluate fully
the letter from Torres, and to determine whether it would have warranted a new
trial." Alvarado II, slip op. at 21-22.
In our third opinion issued in 2018, State v. Alvarado (Alvarado III), No.
A-2213-16 (App. Div. May 25, 2018), we considered defendant's appeal of the
denial of his PCR petition after the evidentiary hearing on remand we ordered
in Alvarado II. For reasons still not clear to us, the only witness to testify at the
hearing was defendant's appellate counsel. Torres was not called and did not
testify. Id. at 2. Although the trial court concluded defendant had not
established either prong of the Strickland standard, we found, based on the
testimony of appellate counsel, that "her failure to have argued that defendant's
motion for new trial based on newly discovered evidence should not have been
denied without an evidentiary hearing fell 'outside the wide range of
professionally competent assistance.'" Id. at 16 (quoting Strickland v.
Washington, 466 U.S. 668, 690 (1984)). We were unable to determine, however,
whether counsel's failure caused defendant any prejudice, because the trial court
had never conducted an "evidentiary hearing to determine whether Torres's letter
A-0409-19
9
would have been sufficient to change the jury's verdict that defendant was guilty
of murder." Id. at 16. See State v. Nash, 212 N.J. 518, 547 (2013). Accordingly,
we reversed the denial of defendant's petition and "again remand[ed] for an
evidentiary hearing on that critical issue." Alvarado III, slip op. at 17.
The trial court in 2019 finally conducted the remand hearing we ordered
in our 2012 opinion. The hearing was brief, and Torres was clearly an unwilling
witness. She testified through an interpreter. She was emotional, and when
several times offered a break, refused, saying she wanted "to finish with this,"
or "No, no, I want to end this. I want this to end. I want this to end and I don't
want to come back again."
As the focus of the hearing was the contents of the letter Torres allegedly
wrote defendant while he was awaiting sentence for the murder of Torres's son,
we reprint the translation admitted at the hearing:
Dear Mr. Alvarado,
This letter is to tell you and hoping in God that you are
in good health and stability. Well, I imagine you have
to be surprised about my letter, "yes" Luis, I am Maria,
I am writing you because I felt I had to do it before I
get over this nightmare.
I need to leave my resentment and my grudge behind,
leave it here and not carry it with me when I come out.
It has not been easy for me the loss of my son. Luis, I
ask, what happened that day? everything was fine
A-0409-19
10
between the two of us, nobody wants to tell me what
really happened, I know you are a good man and
specially a good father, I know you lost your mind
perhaps for something I said against you, but I had no
other alternative, I had to tell you that you were who
did everything so I can come good out of this, this was
the deal I had to do with the prosecutor, forgive me my
love. I know you are suffering a lot in that place, I
know you love your sons a lot, and that to me, hurts me.
However, I always was very stern with the poor boy,
that hurts me a lot, but I think you were guilty, because
you always liked to leave me alone and you left with
your friends and I came to think that you had someone
else, that made me mad, very angry, Luis, you have no
idea "yes" I punished that boy, but it was not to kill him,
I knew he had several black and blue marks and that is
why they put me in jail, because I had said I knew of
the blows and the black and blue marks, and by not had
called the police, I know, you did not know about it, but
because of that the prosecutor asked me to give the last
statement, so they can find you guilty, as I said, I had
no other option, I had to do something to save myself,
I did not want it, but if I did not do it, the prosecutor
would not take the charges away from me, forgive me.
Now, I know you are thinking in appealing your case,
that means if you do it, perhaps I had to testify again
and I will have to say same thing, because of the deal
with the prosecutor. Luis, it was not easy for me to take
the decision of writing you, but I feel that everything
that is happening in someway is my fault, I know you
were right in willing to go to trial and to know how
everything happened and where all these blows came
from, the broken rib that [he] had for several months.
I am begging you to forgive me and I forgive you and I
tell you it will not be easy to forget you, because I love
you very much even though I harmed you but I had no
other alternative, I explained to you well, I will be
A-0409-19
11
coming out soon from here and you do not the time they
will be giving you, it hurts me what is going on,
specially regarding your sons, I am sorry for my
handwriting, you know that I have been through. I was
under treatment while I was here, in the Hudson
County, I am going to give you an advice, I am telling
you for your own good, when you go to prison take
good care of yourself, trust in God, what else I can tell
you, I wish you the best and forgive me because I have
lied, I want to you to understand me better, nobody
knows how is been in here, I did not want to harm you
but if I did not do it, I would be like you, remember I
love you and it when I come out, I am going to try to
help you O.K.
I wish you can write down to me, to this address
875867C/506072 (BRAVO) (EAST WING 3 ROOM)
PO Box 4004
CLINTON N.J. 08809
I love you, M. Maria (MC)
Defense counsel began his questioning by trying to establish the timing of
this letter. Torres was confused about dates and where she had lived when,
noting, at one point, "It's 17 years ago." 1 Counsel showed Torres four letters
she purportedly wrote to defendant, none of which she could identify, saying
1
That statement appears to be off by at least a year or so. Torres's son was
killed in early March 2003, when she was around twenty-two years old.
Defendant was convicted of his murder in September 2004. The dates of the
other letters were not mentioned in the record, but the envelope defendant
contends contained the letter quoted in the text, which is undated, appears to be
postmarked sometime in 2005. Defendant's new trial motion was heard in late
October 2005, and he was sentenced on November 4, 2005.
A-0409-19
12
she "just [didn't] remember." Torres eventually identified three of the letters as
hers, but denied writing this letter, although she testified she remembered
addressing the envelope. Torres claimed the letter "says the same thing as the
others, but this is not my handwriting."2 She claimed not to recall whether she
dictated the letter to someone else to write.
Torres claimed she wrote to defendant because she wanted to ask "him
what had happened to [her] son because nobody wanted to explain to [her]
anything." Torres admitting saying defendant was a good man and a good father
in other letters, but denied ever saying she was "that stern" with her son,
explaining counsel should understand "that the words that are written in Spanish
not necessarily mean exactly the same thing when it is written in English."
Directed to the line stating, "forgive me my love," counsel asked whether Torres
had ever asked defendant to forgive her. Torres responded she "was trying to
be affectionate towards him to see if I would get him to tell me what he did to
my son," although still denying she wrote the letter.
Torres also denied ever saying to defendant that she "punished the boy but
it was not to kill him," insisting it was defendant who punished the child. She
2
Although entered into evidence at the hearing, the other letters were not
included in the appendix.
A-0409-19
13
admitted communicating to defendant that were he to appeal, she would have to
testify against him again "because of the deal [she] made with the prosecutor."
Asked what her deal was, she answered "to tell the truth." Asked to read again
the line near the end of the letter asking defendant "to forgive me because I have
lied," Torres replied: "And that I lied about what? Why don't you let me tell
you what was my lie, because everything I said [in court] was the truth." Torres
continued to assert that her testimony at trial had been truthful, and maintained,
as she had already explained, that she "used to play with [defendant] with his
mind to see he would be able to tell me what is it that he did to my son. It is the
only thing that [I] wanted to do. Even to this day I don't know what he did to
the child."
After counsel had completed their questioning, the court asked Torres
whether she had testified truthfully at trial, and about the line in the letter saying,
"I wish you the best and forgive me because I have lied," asking specifically,
"Do you know what that means?" Torres responded that her trial testimony had
been entirely truthful, including what defendant did to the child. Responding to
the request for forgiveness, Torres explained she "told the truth there. If I had
to say it again I will say again all the things that he used to do to the child. And
that's it." Torres added it was "very painful to revive all of that again."
A-0409-19
14
The PCR judge, who had not presided over the trial, found Torres's
testimony credible. Although noting that Torres denied the handwriting was
hers, and repeatedly said she didn't recall having anyone else write the letter or
writing it herself, the judge found Torres at some point "acknowledged
indirectly to having authored the letter." Relying on Torres's repeated assertions
that she was "playing" with defendant's mind, however, the judge found Torres's
testimony established "the letter was not meant to recant her trial testimony; it
was a ploy meant to solicit information from petitioner regarding the baby."
"Based on Torres' numerous and unequivocal statements that she testified
truthfully at [defendant's] trial, along with her explanations as to why she wrote
a letter that appeared to contradict her trial testimony," the judge concluded
defendant did not satisfy the third prong of the Carter test. Specifically, the
judge wrote that "[t]he letter is not 'believable' and does not 'so seriously
impugn[] the entire trial,'" quoting State v. Carter, 69 N.J. 420, 427 (1976).
Because defendant could not show that "Torres'[s] letter 'would probably change
the jury's verdict if a new trial were granted,'" Carter, 85 N.J. at 314, the judge
found defendant was not entitled to a new trial and, thus, notwithstanding
appellate counsel's deficient performance in failing to challenge the denial of
A-0409-19
15
the motion for new trial on direct appeal, could not establish he was prejudiced
thereby under the second prong of Strickland.
Defendant appeals, raising the following arguments:
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF BECAUSE APPELLATE
COUNSEL WAS INEFFECTIVE IN FAILING TO
APPEAL THE DENIAL OF MR. ALVARADO'S
MOTION FOR A NEW TRIAL BASED ON THE
EXCULPATORY EVIDENCE CONTAINED IN THE
LETTER WRITTEN BY MS. TORRES, WHICH
WARRANTS A NEW TRIAL.
In his pro se supplemental brief, defendant adds the following points:
POINT I
THE PCR COURT ERRED IN ITS EVIDENTIARY
HEARING DENIAL, AS THE FINDING OF
CREDIBILITY IS NOT SUPPORTED BY THE
RECORD, BECAUSE THE WITNESS'S
TESTIMONY SHOWS THAT SHE LIED UNDER
OATH DURING THE HEARING, WHICH
UNDERMINES THE TRUSTWORTHINESS OF HER
TESTIMONY, WHICH WAS SOLELY USED IN
SECURING APPELLANT'S CONVICTION.
MOREOVER, THE PCR COURT ERRED WHEN IT
MADE A DETERMINATION AS TO THE
TRUTHFULNESS OF THE WITNESS, AS THIS
DUTY IS TO BE LEFT TO A JURY.
A. Ms. Torres's testimony was untruthful, and
therefore cannot be relied upon to support the PCR
court's findings.
A-0409-19
16
B. The PCR court erred when it made a credibility
determination of the witness's trial testimony, as such
determination is only to be made by a jury.
POINT II
THE PCR COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE WHEN HE FAILED TO FILE
APPELLANT'S PRO SE LETTER BRIEF WHICH
VIOLATED APPELLANT'S RIGHT TO DUE
PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONST. AND ART. 1 PAR. 10 OF THE
NEW JERSEY CONSTITUTION.
As we determined in Alvarado III that defendant established the first
prong of Strickland based on the failure of his appellate counsel to argue the
trial court should not have denied his new trial motion without an evidentiary
hearing, our only task here is to determine if the remand court was correct that
defendant suffered no prejudice from that failure because Torres's letter does
not entitle defendant to a new trial. See Strickland, 466 U.S. at 694-95 (stating
grant of new trial because of ineffective assistance of counsel depends on
whether result would have been different but for counsel's deficiency); State v.
Bray, 356 N.J. Super. 485, 499 (App. Div. 2003) (explaining PCR court must
determine the merits of the claim omitted on direct appeal in order to assess
whether deficient performance of appellate counsel would or would not have
prejudiced the defense).
A-0409-19
17
As our Supreme Court regularly reminds, "[o]ur rules governing post-
conviction relief are the last line of defense against a miscarriage of justice. "
Nash, 212 N.J. at 526. "[T]he purpose of post-conviction review in light of
newly discovered evidence is to provide a safeguard in the system for those who
are unjustly convicted of a crime." State v. Ways, 180 N.J. 171, 188 (2004).
Nevertheless, because, "[a] jury verdict rendered after a fair trial should not be
disturbed except for the clearest of reasons," our courts review a claim alleging
newly discovered evidence "with a certain degree of circumspection to ensure
that it is not the product of fabrication, and, if credible and material, is of
sufficient weight that it would probably alter the outcome of the verdict in a new
trial." Id. at 187-88.
"[R]ecantation testimony, a species of newly discovered evidence
generally regarded 'as suspect and untrustworthy,' is subject to especially close
scrutiny." Id. at 196-97 (quoting Carter, 69 N.J. at 427). "Consequently, the
burden of proof rests on those presenting such testimony to establish that it is
probably true and the trial testimony probably false." Carter, 69 N.J. at 427.
The Court has explained the test for the trial judge
in evaluating a recantation upon a motion for a new trial
is whether it casts serious doubt upon the truth of the
testimony given at the trial and whether if believable,
the factual recital of the recantation so seriously
A-0409-19
18
impugns the entire trial evidence as to give rise to the
conclusion that there resulted a possible miscarriage of
justice. His [or her] first duty is, therefore, to determine
whether the recanting statement is believable.
[Ibid. (quoting State v. Puchalski, 45 N.J. 97, 107-108
(1965)).]
Our job as a reviewing court is to "engage in a thorough, fact-sensitive
analysis to determine whether the newly discovered evidence would probably
make a difference to the jury." Ways, 180 N.J. at 191. As the Court instructed
in Carter, however, "[t]he determination of the credibility or lack thereof of
recantation testimony is peculiarly the function of the trial judge who sees the
witnesses, hears their testimony and has the feel of the case." 69 N.J. at 427.
Critically important, a witness's "[m]anner of expression, sincerity, candor and
straightforwardness are just some of the intangibles available to the trial judge
in evaluating the credibility of recantation testimony." Id. at 427-28. Because
a reviewing court lacks that "advantage, [it] should ordinarily defer to the trial
judge's findings on this sensitive issue as long as the proper criteria are used."
Ibid.; see also Ways, 180 N.J. at 196-97 (noting "deference is particularly
warranted in the context of recantation testimony").
This, of course, is not classic recantation testimony. The alleged recanting
witness, Torres, insists her testimony at trial was truthful and the letter, an effort
A-0409-19
19
to cajole defendant into telling her what he had done to her son, was not.
Importantly, not one, but two trial judges, having heard Torres testify — the trial
judge at the N.J.R.E. 104 hearing and at trial, and the PCR judge at the remand
hearing following Alvarado III — have found her to be a credible witness. 3
While defendant's counsel insists that Torres's explanation for the letter
was not believable, and defendant, even more blunt, claims Torres "lied multiple
times" during her testimony, we are not so free to discount that the PCR judge
believed what she had to say about the letter and the truthfulness of her trial
testimony. See Ways, 180 N.J. at 196-97; Carter, 69 N.J. at 427. We are also
keenly aware of the dangers of substituting our view of a witness's credibility
for the trial judge's based on our reading of a cold record. See Nash, 212 N.J.
3In denying defendant's new trial motion, the trial judge noted defense counsel's
vigorous cross-examination of Torres and her demeanor at trial, stating:
She was understandably shaken at the trial. She's
talking about her seventeen-month-old son, no matter
who was at fault, and even if nobody was at fault, he's
dead. So, clearly, she's upset. She's talking about the
person she apparently at least at one time loved, and
apparently she's telling us [in the letter] still does love
him sitting about twenty feet away from her. She's
testifying against him.
And notwithstanding that, the judge stated he "found her testimony extremely
credible and straightforward at the trial."
A-0409-19
20
at 540 ("An appellate court's reading of a cold record is a pale substitute for a
trial judge's assessment of the credibility of a witness he has observed
firsthand."). As Judge Jayne observed, "the best and most accurate record (of
oral testimony) is like a dehydrated peach; it has neither the substance nor the
flavor" of the real thing. Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104
(App. Div. 1952).
That substance and flavor is especially critical here, as we have already
acknowledged Torres's letter could be read two ways — "as an effort to assuage
her conscience and excuse herself for having testified truthfully against
Alvarado," or "as an apology and explanation for having testified untruthfully
with respect to some or all of her testimony." Alvarado II, slip op. at 19. The
PCR judge concluded the letter was not an apology for Torres having testified
untruthfully against defendant at trial. And the judge believed Torres when she
said her trial testimony had been true, and she had not lied about anything,
including the injuries defendant had inflicted on her son in the months before
his death. We defer to those findings, which were based on the judge's first-
hand observation of the witness and her answers to his and the parties' questions.
See Nash, 212 N.J. at 540-41.
A-0409-19
21
Although we defer to the judge's credibility findings, we are also mindful
that had the letter been written before or during trial, the State would have had
no basis to object to its use by the defense to impeach Torres's testimony. See
Strickler v. Greene, 527 U.S. 263, 280 (1999); State v. Nelson, 155 N.J. 487,
497-98 (1998). Accordingly, we have reviewed the trial record to consider
whether Torres's letter, had it been admitted, "would probably make a difference
to the jury." Ways, 180 N.J. at 191.
Defendant conceded in his statement to the police that he caused the baby's
death. Defendant told police that Torres went out to the store in the morning to
get milk for the baby. When the child saw her put on her coat and get ready to
leave, he'd started to cry. The baby took a bottle but later began to cry again.
Defendant said he was watching Italian league soccer on television, and he
pressed the baby to his chest to quiet the child's crying. Defendant said the baby
quieted down "after that," and he laid the child on his bed and went back to
watch the game. Defendant then heard the baby gasping for air, "like . . . he
can't breathe." Defendant called Torres to come home, which she immediately
did, but the baby was unresponsive by the time she arrived.
Asked at the end of his statement if there was anything else he wanted to
say, defendant added this:
A-0409-19
22
What I can say? So, you know, if something happen
with the baby, I thinks, I'm responsible because, you
know, if, maybe if I don't press him like that[,] the baby
didn’t go and die.
Q: Okay.
A: So, I feel, I feel so bad because you know, I didn't
want to kill him. Definitely I didn't wanna kill him.
But you know. We never know when this stuff's gonna
happen you know. Um, I did this before with him. And,
you know, his reaction was normal you know. And I
think this time it, it's gonna be the same thing. But you
know, it's, it's not a, it's not a same thing. So, I don't
know. That's all I have to say.
The State's forensic pediatric pathologist testified to evidence discovered
during the postmortem exam that defendant had indeed done "this before with"
the child. Specifically, the pathologist found a healing rib fracture inflicted, in
his opinion, from ten to fourteen days and up to a month before the child's death.
The pathologist also testified the child, who was about thirty-one inches tall and
weighed twenty-two pounds, suffered three distinct injuries at the time of his
death that could not have been inflicted simultaneously. There was a line of
small reddish bruises along the child's backbone, which to the pathologist
resembled multiple fingerprints, "certainly compatible with the tip ends of
fingers pressing against the skin," as well as larger bruises on the lower left and
right front of the child's chest, "almost like a palm in the front and fingers along
A-0409-19
23
. . . the back." The child also suffered from bruises and abrasions along his jaw
line, a scrape around his mouth and a torn upper frenula, consistent with
"something, force pushing up on the jaw, pushing the upper lip . . . and
essentially pushing upward to tear the frenula." Finally, the child suffered a
deep muscle injury to his left thigh.
The pathologist testified that when "multiple ribs crack, you can hear them
and you feel [the chest] becomes lax." The doctor illustrated his point with an
analogy, "you know when you break a stick, you hear it crack and it just bends,
it collapses. You know it when you're doing it." The doctor further explained
that "you can't squeeze the chest, push up on the face and cause an injury to the
left thigh" simultaneously. The doctor opined those injuries would have had to
occur at different times. And although the interval between each may have been
brief, as all occurred shortly before death, he testified that "regardless of the
time frame between them . . . that would be repetitive and it would also have to
be intentional. These [injuries] don't happen on their own."
That testimony was devastating to the defense in two respects. It
corroborated defendant's statement to the police that he had done "this before
with" the child and undercut his contention that he had not acted intentionally
in causing the child's death.
A-0409-19
24
Defendant's counsel had opened to the jury conceding defendant had
caused the child's death, but asserted he had done so recklessly, making him
guilty of manslaughter but not murder. In his summation, defense counsel again
conceded the child's death was not an accident. He argued of the three versions
jurors had heard as to how it happened — the one where defendant was playfully
tossing the child in the air and unable to catch him, the statement he gave to
police that "something happened and it's my responsibility," and the version
offered by defendant's fellow inmate at the jail — the "real version," the "true
version" was the last, that defendant had gotten frustrated with the baby when
he wouldn't stop crying during the game, slammed him into the wall and threw
him towards the bed where he hit the bedpost and slid to the floor.
That version was the only one that could account for all three injuries the
pathologist claimed the child suffered at the time of his death that might be
consistent with reckless, and not intentional conduct. Counsel argued the
"whole set of injuries that happen[ed]" as a result of defendant slamming the
child into the wall made that version the most consistent with the doctor's
testimony. He also argued that defendant's two outbursts during the trial, both
before the jury, the first when he complained the prosecutor was not letting
defense counsel ask questions and the second when he stood up and pointed
A-0409-19
25
toward his fellow inmate at the end of his testimony and said — in English: "I'm
going to make sure people in jail know you're a f…ing snitch," demonstrated
defendant was concededly "a little hotheaded." 4 Counsel contended those two
"little snapshot[s]" revealed defendant "can't control himself. Temper problem,
anger problem." He argued that, as with striking the child, defendant didn't
appreciate the risk of such reckless outbursts, making clear defendant was
"impulsive" and "probably a poor thinker." 5
Defense counsel argued the only two important witnesses had been the jail
house informant and the medical examiner. He dismissed Torres, saying
"[s]ome people think she's sad and pathetic and you feel sorry for her, and other
4
Defendant employed a Spanish interpreter throughout the trial and all court
proceedings.
5
Defense counsel moved for a mistrial immediately after defendant's second
outburst, the threat against the jail house informant, arguing it compromised the
defense and "poisoned" his efforts going forward. The prosecutor urged the
judge to consider that defendant "seeing his defense . . . has been destroyed, to
put it mildly, by both [a] forensic pathologist[] and by direct witnesses[,] may
have decided that his only alternative to a conviction is to have an outburst."
The judge denied the motion, in part because defendant's outburst wasn't
inconsistent with the defense defendant was mounting — "He gets frustrated and
upset. When things don't go his way, he gets upset and he has an outburst."
Defense counsel stated that, although it wouldn't be his preference, he would
"be summing up to that" if his mistrial motion was denied. We note defendant's
outburst, and the prosecutor's assessment of the State's case to that point,
occurred before Torres testified.
A-0409-19
26
people are going to say you're just as culpable, how dare you." He argued that
assuming everything she said was true, it didn't make defendant a murderer.
Counsel highlighted Torres's testimony claiming defendant admitted he put hot
sauce on the baby's bottle as a practical joke, and promised he wouldn't do it
again when she didn't find it funny, as "not the mindset of somebody who wanted
to kill the kid."
Although we have no doubt Torres's testimony was harmful to defendant,
having reviewed the entire trial record, even more damning than Torres's
accusations was defendant's own unstudied admission, corroborated by the
medical examiner, that defendant had done "this before with" the child.
Moreover, defendant's explanation of why he employed the same "pressing"
technique on the day of the baby's death — that "[the baby's] reaction was
normal," the first time, leading defendant to think "it's gonna be the same thing"
this time, reflected intent not impulsiveness.
Accordingly, we affirm the PCR court's determination, made after hearing
Torres testify, that the 2005 letter does not cast serious doubt on the testimony
she gave at defendant's trial, and conclude that even were Torres's letter before
the jury, it did not have the power to likely alter the verdict in light of the State's
other evidence against defendant, none of which relied on Torres's testimony in
A-0409-19
27
any particular. Even were the jury to believe Torres lied about defendant's prior
acts against the child, defendant's admission he "pressed" the child on a prior
occasion, corroborated by the pathologist's discovery of a healing rib fracture,
and defendant's concession that his doing so again caused the child's death, make
it unlikely anything Torres had to say would have changed the jury's verdict,
even from murder to manslaughter.
We thus affirm the denial of defendant's first petition for PCR on the basis
that defendant failed to establish he suffered any prejudice from appellate
counsel's failure to argue defendant's motion for a new trial, based on Torres's
letter, should not have been denied without an evidentiary hearing. We find
defendant's arguments to the contrary, including those made in his pro se brief,
to be without merit. 6 See R. 2:11-3(e)(2).
6
We include in that the argument presented in Point II of defendant's pro se
brief that PCR counsel was ineffective for having failed to file defendant's "pro
se letter brief" with the trial court in advance of the evidentiary hearing we
ordered in Alvarado III. In that brief, included in defendant's pro se appendix,
defendant argued: "The court should grant defendant's PCR and order a new trial
even if Ms. Torres fails to appear for the evidentiary hearing because the trial
court, as well as the appellate courts have doubts concerning her credibility."
As Torres appeared at the hearing and testified, PCR counsel's alleged failure to
have filed defendant's pro se brief with the PCR court could not have resulted in
any prejudice to him. See Strickland, 466 U.S. at 694.
A-0409-19
28
We turn next to defendant's appeal in A-2252-19 from the denial of his
second PCR petition without an evidentiary hearing based on the United States
Supreme Court's decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The
Court in McCoy held that when a defendant expressly asserts he wishes to
maintain his innocence and does not want to admit guilt, "his lawyer must abide
by that objective and may not override it by conceding guilt," notwithstanding
the lawyer's belief that conceding guilt would be the only hope of assisting the
defendant's case. Id. at 1509.
Following the Court's decision in McCoy, defendant attempted in January
2019 to file a timely second petition for PCR, alleging his trial counsel violated
his Sixth Amendment-secured autonomy by conceding defendant recklessly
caused the victim's death over defendant's objection. The criminal division,
however, refused to file the petition, advising defendant he could not proceed
with his second PCR while his first remained pending. Defendant wrote to the
division advising he was aware his first petition remained pending but was
attempting to insure he could avail himself of the newly recognized right in
McCoy by filing a new petition within a year of that opinion, which was issued
May 14, 2018, in accordance with Rule 3:22-12(a)(2)(A).
A-0409-19
29
Following the trial court's denial of defendant's first petition in June 2019,
defendant re-filed his second PCR petition based on McCoy. The court denied
both the petition and defendant's subsequent motion for reconsideration. While
acknowledging that defendant's second petition was timely filed in accordance
with Rule 3:22-12(a)(2)(A), the court nevertheless denied it on the basis of Rule
3:22-4, reasoning that defendant could have brought his new claim during the
"prior proceedings" on his first PCR petition.
Defendant appeals, arguing:
THE LOWER COURT ERRED IN DENYING
APPELLANT'S PCR PETITION, WHEN IT DID NOT
CONDUCT AN EVIDENTIARY HEARING TO
ASCERTAIN IF APPELLANT'S SIXTH
AMENDMENT RIGHT TO AUTONOMY IN HIS
OWN DEFENSE WAS VIOLATED, PURSUANT TO
MCCOY V. LOUISIANA, 584 U.S. (2018), WHEN
TRIAL COUNSEL TOLD THE JURY THAT
APPELLANT WAS GUILTY, DESPITE HIS
ADAMANT DENIALS OF GUILT.
We affirm the denial of defendant's petition, although for reasons different from
those expressed by the trial court. See Hayes v. Delamotte, 231 N.J. 373, 387
(2018) (directing that a "trial court judgment that reaches the proper conclusion
must be affirmed even if it is based on the wrong reasoning").
Rule 3:22-12(a)(2)(A) provides that
A-0409-19
30
Notwithstanding any other provision in this rule, no
second or subsequent petition shall be filed more than
one year after the latest of:
(A) the date on which the constitutional right asserted
was initially recognized by the United States Supreme
Court or the Supreme Court of New Jersey, if that right
has been newly recognized by either of those Courts
and made retroactive by either of those Courts to cases
on collateral review.
[Emphasis added.]
We agree with defendant that McCoy announced a newly recognized
constitutional right. Defendant does not, however, address whether the Court in
McCoy made that right "retroactive . . . to cases on collateral review" as the Rule
requires, that is applicable to those cases before the court on PCR "where all
avenues of direct appeal have been exhausted." See State v. J.A., 398 N.J. Super.
511, 514 (App. Div. 2008). Unless McCoy applies retroactively to cases on
collateral review, it is of no avail to defendant here.7
Although Justice Ginsberg made clear in McCoy that counsel conceding
a client's guilt over the client's express objection is structural error, meaning a
defendant need not show prejudice in order to be entitled to a new trial, 138 S.
7
Although our Supreme Court could determine to apply the rule of McCoy
retroactively as a matter of state law in New Jersey PCR proceedings, see
Danforth v. Minnesota, 552 U.S. 264, 282 (2008), until it does, we are bound by
the strictures of Rule 3:22-12(a)(2)(A).
A-0409-19
31
Ct. at 1511, the decision is silent as to whether it is to be applied retro actively
to cases on collateral review. Two circuit courts considering the issue, however,
have ruled McCoy does not apply retroactively to collateral challenges of final
convictions. See Smith v. Stein, 982 F.3d 229, 233-35 (4th Cir. 2020); Christian
v. Thomas, 982 F.3d 1215, 1224-25 (9th Cir. 2020).
Those courts reason the Supreme Court has held that new rules of
constitutional law, such as the one announced in McCoy, are "generally
applicable only to cases that are still on direct review." Smith, 982 F.3d at 233
(quoting Whorton v. Bockting, 549 U.S. 406, 416 (2007)). The only exception
for procedural rules such as this one has been if the rule is truly a "'watershed
rul[e] of criminal procedure' implicating the fundamental fairness and accuracy
of the criminal proceeding." Whorton, 549 U.S. at 416. The Fourth Circuit,
however, noted "the Supreme Court has never found a new procedural rule to be
'watershed' even though it has considered the question more than a dozen times."
Smith, 982 F.3d at 235 (citing Whorton, 549 U.S. at 418 (collecting cases)).
More recently, the Supreme Court itself noted that in the thirty-two years
since it announced the exception for watershed rules of criminal procedure in
Teague v. Lane, 489 U.S. 288, 311 (1989), "the Court has never found that any
new procedural rule actually satisfies that purported exception." Edwards v.
A-0409-19
32
Vannoy, 141 S. Ct. 1547, 1555 (2021). The Edwards Court declared that
"[c]ontinuing to articulate a theoretical exception that never actually applies in
practice offers false hope to defendants, distorts the law, misleads judges, and
wastes the resources of defense counsel, prosecutors, and courts ." Id. at 1560.
It accordingly announced "[t]he watershed exception is moribund," and
abandoned it. Ibid. The law is now that "new procedural rules apply to cases
pending in trial courts and on direct review. . . . [b]ut . . . do not apply
retroactively on federal collateral review." Id. at 1562.
Given the Court's announcement in Edwards that no new procedural rule
will apply retroactively in federal habeas proceedings, we are confident the new
rule announced in McCoy does not apply here as a matter of federal law, and
thus, that defendant's second PCR petition is barred by Rule 3:22-12(a)(2)(A).
Our disposition makes it unnecessary to resolve our doubts that Rule 3:22-
4(b)(2)(A) was properly invoked by the trial court in light of the terms of our
limited remand in Alvarado III.
Affirmed.
A-0409-19
33