STATE OF NEW JERSEY VS. MYRNA DIAZ(07-08-3025, ESSEX COUNTY AND STATEWIDE), A-0487-15T2

Background

Defendant Myrna Diaz was indicted for felony murder, robbery, weapons offenses, burglary, conspiracy, and credit-card theft for the October 8, 2006 robbery and homicide of Jose Cabrera; surveillance and card-use evidence linked her to post‑murder use of Cabrera’s credit card.
Diaz initially gave two recorded police statements and later a recorded interview with A.P. Naazneen Khan; her statements variously admitted presence at the shop, use of the credit card, and different levels of involvement.
In 2008 Diaz pled guilty to aggravated manslaughter and robbery in exchange for a State recommendation of a sentence not to exceed 15 years (NERA exposure). She later moved pro se to withdraw the plea; the court, with State consent, allowed withdrawal and assigned new counsel.
At trial Diaz testified she was not at the robbery/murder and claimed an alibi (with Marshell Milliner). The jury convicted her of all counts; she was sentenced to an aggregate 40 years (NERA). Appellate review affirmed.
After trial Diaz learned Milliner’s recorded statement existed (contrary to the State’s prior claim it was destroyed) and moved for a new trial and filed a PCR petition alleging Brady/discovery violations and ineffective assistance for trial and appellate counsel (including counsel’s absence during the Khan interview and failure to call Milliner).
The trial court denied the new‑trial motion and PCR petition, finding Milliner’s recorded statement was inculpatory (undermining Diaz’s alibi), counsel’s conduct fell within reasonable professional judgment, and any error was not prejudicial given overwhelming evidence; this appeal was affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to disclose Milliner recording / Brady discovery violation	State disclosed police report summarizing Milliner’s statement; recording’s existence not material or exculpatory	Recording was newly discovered, exculpatory, would have supported alibi and required new trial	Denied — recording was inculpatory and would not probably change the verdict; no Brady-based new trial warranted
Ineffective assistance — counsel absent at Khan interview	State: interview concerned unrelated prison complaint; counsel had no right to be present and Diaz chose to discuss the homicide	Diaz: counsel’s absence forfeited protection and allowed use of interview testimony at rebuttal	Denied — no Sixth Amendment right for unrelated administrative interview; even assuming error, no prejudice given inconsistent statements and strong evidence
Ineffective assistance — failure to locate/call Milliner and challenge discovery	State: Milliner’s statement undermined Diaz’s alibi; reasonable not to call witness	Diaz: counsel was deficient for failing to pursue alibi witness and challenge discovery	Denied — strategic decision within Strickland range; no prejudice because Milliner’s recorded statement contradicted Diaz’s alibi and evidence of guilt was strong
Appellate counsel ineffective for not challenging use of Khan statement on rebuttal	State: Ventris and authority permit use of statements obtained in violation of Sixth Amendment to impeach defendant’s trial testimony	Diaz: appellate counsel should have raised the issue	Denied — use on rebuttal is permissible per controlling precedent; no arguable appellate meritorious claim

Key Cases Cited

Miranda v. Arizona, 384 U.S. 436 (recognition of custodial interrogation warning requirements)
Brady v. Maryland, 373 U.S. 83 (prosecution duty to disclose exculpatory evidence)
Strickland v. Washington, 466 U.S. 668 (two‑prong test for ineffective assistance of counsel)
Kansas v. Ventris, 556 U.S. 586 (statements taken in violation of Sixth Amendment may be used to impeach defendant’s in‑court testimony)
State v. Ways, 180 N.J. 171 (standards for newly discovered evidence/new trial)
State v. Carter, 85 N.J. 300 (newly discovered evidence standard)
State v. Porter, 216 N.J. 343 (PCR evidentiary hearing standards)
State v. Preciose, 129 N.J. 451 (review of denial of PCR without hearing)
State v. O'Neil, 219 N.J. 598 (application of Strickland in New Jersey)
State v. Taccetta, 200 N.J. 183 (plea withdrawal and effect of inconsistent post‑plea claims)