STATE OF NEW JERSEY v. TODD CRISCI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5618-03T45618-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TODD CRISCI,

Defendant-Appellant.

______________________________

 

Submitted December 5, 2005 - Decided May 12, 2006

Before Judges Alley, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, 02-12-1500-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was charged by a Morris County grand jury with first degree murder, N.J.S.A. 2C:11-3a(1), a(2) (Count One); third-degree hindering of his own apprehension, N.J.S.A. 2C:29-3b(1) (Count Two); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (Count Three). Following a jury trial, defendant was convicted on all counts. Judge Langlois sentenced him to forty-five years subject to an eighty-five percent parole disqualifier on the murder conviction, Count One. The judge merged the Third Count into the Second Count, and on the latter she imposed a three-year sentence consecutive to the First Count. This homicide involved the killing of defendant's girlfriend, Yvette Blakeslee, on the evening of June 8, 2002, or early the following morning, as a result of a physical fight in the kitchen area of defendant's apartment.

In this appeal, defendant contends in his brief as follows:

POINT I: THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DEPRIVED CRISCI OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

POINT II: CRISCI'S FIFTH AMENDMENT AND SIXTH AMENDMENT RIGHTS WERE VIOLATED.

POINT III: THE TRIAL COURT ERRED BY PERMITTING TRANSCRIPTS OF CRISCI'S STATEMENT INTO THE JURY ROOM BECAUSE THE TRANSCRIPTS WERE NOT ADMITTED INTO EVIDENCE.

POINT IV: THE TRIAL COURT ERRED IN ALLOWING THE STATE'S EXPERT TO TESTIFY OUTSIDE OF THE SCOPE OF HIS REPORT.

POINT V: THE TRIAL COURT ERRED IN NOT PERMITTING CRISCI TO SECURE THE PRESENCE AND TESTIMONY OF MICHAEL D'ANGELIS.

POINT VI: CRISCI WAS PREJUDICED BY THE STATE'S REFERENCE REGARDING THE DEFENDANT'S INCARCERATION.

POINT VII: CRISCI'S SENTENCE WAS UNCONSTITUTIONAL AND, THEREFORE, SHOULD BE VACATED.

A. CRISCI'S SIXTH AMENDMENT RIGHT TO A JURY TRIAL WAS VIOLATED BY THE SENTENCING JUDGE IN LIGHT OF THE UNITED STATES SUPREME COURT DECISIONS IN BLAKELY AND BOOKER.

B. THE PRESUMPTIVE SENTENCE SPECIFIED IN N.J.S.A. 2C:44-1F(1) IS THE ONLY ONE AUTHORIZED BY A JURY'S VERDICT.

C. N.J.S.A. 2C:44-5 IS UNCONSTITUTIONAL BECAUSE IT PERMITS A COURT TO IMPOSE CONSECUTIVE SENTENCES BASED ON JUDGE-MADE FINDINGS.

D. AS A MATTER OF LAW, THE FAILURE TO SUBMIT 2C:44-1A'S AGGRAVATORS TO THE JURY CAN NEVER BE CONSIDERED HARMLESS ERROR.

E. CRISCI'S SENTENCE WAS EXCESSIVE AND UNFAIR.

According to certain evidence presented at trial, defendant was irate because his live-in girlfriend, Yvette Blakeslee, was "sleeping around." Blakeslee did not come home on the evening of June 7, 2002, and as a consequence, defendant threw out her personal belongings. The following evening, defendant found Blakeslee at a friend's apartment and they argued. Later that night, Blakeslee went to defendant's apartment and they had sexual relations. Afterwards, defendant asked Blakeslee whether she was still having sex with Michael DiAngelis. Blakeslee got angry and they fought.

Further evidence indicated that defendant choked Blakeslee and punched her several times. The following morning, when defendant took Blakeslee to Chilton Memorial Hospital, she was not breathing. The emergency room attendants tried to revive her but she was dead. When the investigation led the police to defendant, he gave several statements in which he admitted inflicting the injuries that resulted in Blakeslee's death.

Defendant contends that his trial counsel failed to call any material witnesses, to cross-examine adverse witnesses vigorously, to meet with defendant sufficiently, and to prepare properly for trial.

It is undisputed that the Sixth Amendment of the United States Constitution and Article I, paragraph 10, of the New Jersey Constitution guarantee that "'the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). In Strickland, the Court set forth the test for ineffective assistance of counsel, which this State has adopted. See State v. Fritz, 105 N.J. 42, 57-58 (1987).

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Furthermore, counsel has the duty to make a reasonable investigation into the case or to make a reasonable decision that certain investigations are unwarranted. Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In determining whether counsel acted reasonably, the court must look to the totality of circumstances and heavy deference must be accorded to counsel's judgments. Ibid. Moreover, if trial counsel does not "subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984).

Nevertheless, we are persuaded that we should apply the usual rule that post-conviction relief claims should not be heard on direct appeal but deferred for an evidentiary hearing, if the issues involve evidence and assertions of ineffective assistance that is outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). We accordingly do not address the merits of this claim but leave it to defendant to pursue the matter in the trial court by filing a petition for post- conviction relief.

We next address defendant's contention that his Fifth Amendment rights were violated because the police deliberately failed to inform him that Blakeslee had died while they interrogated him. Defendant contends that in these circumstances his waiver of his Fifth Amendment rights was not knowing, intelligent, and voluntary. We disagree.

Under the Fifth Amendment of the United States Constitution, no person "shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. The right to counsel during the investigational stage of a proceeding was established by Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). "New Jersey cases have repeatedly held that the accused or investigation target must, before interrogation, be advised of his right to remain silent, of his right to counsel, and of his right to have counsel assigned if he is indigent." Pressler, Current N.J. Court Rules, comment 3.1 on R. 3:4-2 (2006). If counsel is requested, the interrogation must cease until counsel is provided; on the other hand, if counsel is not requested then the interrogation may continue. Ibid. A statement made in violation of the Fifth Amendment is inadmissible. State v. Harvey, 151 N.J. 117, 221-223 (1997).

Custodial interrogation requires that Miranda warnings be given to the interrogatee. State v. P.Z., 152 N.J. 86, 102-03 (1997). "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Id. at 103. The State has the burden to prove beyond a reasonable doubt that a suspect's waiver was freely and voluntarily made, which depends upon the totality of the circumstances. State v. A.G.D., 178 N.J. 56, 67 (2003). When a defendant challenges the voluntariness of a statement, he must show credible evidence of specific police conduct that renders the statement involuntary. State v. Johnson, 218 N.J. Super. 290, 303 (App. Div. 1987).

In A.G.D., one of the issues was "whether defendant's waiver of his right to remain silent was valid in view of the fact that the detectives did not inform him that an arrest warrant had been issued against him." A.G.D., supra, 178 N.J. at 66. An arrest warrant was issued for the defendant regarding sexual abuse of a minor. Id. at 58. A few days after the warrant was issued, police went to the defendant's home to interview him. Ibid. The police did not specify the nature of the charges, inform defendant of the warrant, or execute the warrant. Ibid. The defendant went to the police station for questioning and prior to any questioning they advised him of his Miranda rights, which he waived by signing a Miranda waiver form. Id. at 60; see Miranda, supra, 384 U.S. at 436, 86 S. Ct. at 1602, 16 L. Ed. 2d at 694.

The Court explained that the Fifth Amendment of the United States Constitution guaranteed the right against self-incrimination, as applied to the states through the Fourteenth Amendment. A.G.D., supra, 178 N.J. at 66. A suspect may waive his Fifth Amendment rights only if his waiver is knowing, intelligent, and voluntary considering the totality of the circumstances surrounding the arrest and interrogation. Ibid. (citing State v. Presha, 163 N.J. 304, 313 (2000)).

The Court found that the "defendant was disadvantaged by a lack of critically important information. The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights." A.G.D., supra, 178 N.J. at 68. The Court reasoned that since a criminal complaint or arrest warrant cloaks a suspect with a "veil of suspicion," the suspect must be advised of his true status so he can make an informed waiver of his rights if he so chooses. Ibid.

Notably, however, the requirement to inform suspects of their true status only applies to the existence of a criminal complaint or arrest warrant. Ibid. The Court specifically stated: "Our holding is not to be construed as altering existing case law in respect of the manner in which the police conduct interrogations other than imposing the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued." Id. at 68-69.

Defendant contends that he did not make an informed waiver because he was not aware of his true status, like the defendant in A.G.D. At trial, defendant moved to suppress the tape recordings. Judge Langlois denied the motion, stating:

The issue, however, is whether or not the failure of the State to tell him that she died, indeed, that there was a possible homicide, would result in a disadvantage to him by a lack of critically important information.

State v. A.G.D., the New Jersey Supreme Court opinion recently spoke about the context in which a statement is given by a defendant where critically important information was not given to him, and it was a disadvantage.

In the context, I would have to say that it is critically important that an individual who's brought in to provide information in investigation be told that a victim had died; however, and he was deprived of that information through the first taping. Perhaps, deprived then of the understanding that his true status may be as a witness to or investigation of a potential homicide.

The Supreme Court in A.G.D., however, made a very clear statement to courts that they were making the determination that the police must tell an individual that the actual issuance of a warrant or the filing of the complaint is given. And I find that quite a distinction from the information here as to the fact that she died.

Specifically, the fact that a warrant was issued for an arrest or complaint filed requires a determination of probable cause that the individual had committed the crime to be made by an independent or a judicial officer independent of police investigation. In quite a different step in a process about the status of a defendant, it takes a defendant in that context out of being merely a potential suspect to being a witness, to being involved in an investigation to the actual person charged with an offense, and quite a significant change in status.

I find that to be quite different in the context of requiring it to be told to a defendant. Because here, the police were, according to Detective Rice and Paul still investigating a possible homicide. As I understand, at that time, it had been indicated from the cause of death that it was a suspicious circumstances. It was a possible homicide charge.

The officers were aware of the assault and the fight, and her death; however, it was, at that point, only a suspicion of homicide. There could be possible causation issues based upon the information that the defendant had provided. And indeed, Detective Paul said that through the initial conversation that other people were still being investigated; and their investigation was expanding, not contracting at that time. And I find that to be quite a distinctive, factual difference. In withholding the fact of her death does not in and of itself vitiate the intelligent waiver of his rights.

And the Supreme Court, as well, in A.G.D. held that the determination that [a police officer] must tell a defendant of an actual issuance of a warrant, or the filing of the complaint, does not alter existing law regarding the manner of the police conducting an interrogation. Certainly, that must be taken to mean that the police can still withhold information even in some ways, misrepresent the nature of its investigation, and even use psychological tactics in the manner in which statements are given.

In these cases are certainly . . . many other cases, in which, while the police are in the course of investigation, they are permitted to use certain tactics or investigative techniques. The police conduct in the manner of interrogation that had been upheld in other cases and that the A.G.D. opinion did not alter that.

Therefore, I find that because the police here, although withholding the fact that she had died, does not in and of itself vitiate what I find to be knowing, intelligent, and voluntary waiver of the rights; and the statements are, therefore, admissible; and will be presented to the jury with the appropriate instruction of their determination of voluntariness.

We agree with the judge essentially for the reasons stated. We reject defendant's position because inasmuch as the proposition set forth in A.G.D. is inapplicable to this case, the facts did not contemplate the filing of a criminal complaint or issuance of an arrest warrant. Furthermore, the Court in A.G.D. clearly explained that its holding did not alter the manner in which police conduct interrogations outside of those two narrow instances. Indeed, the police advised defendant of his rights when the "investigation obviously had just taken a different turn from what it had started out to be . . . ," and we are satisfied that he knowingly, intelligently, and voluntarily waived those rights.

We have carefully considered, in light of the record and the applicable law, each of defendant's other contentions on appeal. Because we are satisfied that none of the remaining contentions is of sufficient merit to warrant discussion in a written opinion, we affirm. R. 2:11-3(e)(2).

Affirmed.

 

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A-5618-03T4

May 12, 2006