STATE OF NEW JERSEY v. TRACY E. DONATO

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5216-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRACY E. DONATO,

Defendant-Appellant.

_______________________________________

October 6, 2010

 

Argued September 14, 2010 Decided

 

Before Judges Parrillo, Yannotti and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-02-0250.

 

Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Yvonne Segars-Smith, Public Defender, attorney; Mr. Pierce, on the brief).

 

Jack J. Lipari, Assistant County Prosecutor, arguedthe causefor respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

Defendant Tracy E. Donato appeals from an order entered by the Law Division on January 6, 2009, denying her petition for post conviction relief (PCR). For the reasons that follow, we affirm.

I.

Defendant was charged under Indictment No. 01-02-0250-I, with first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2); third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant was tried before a jury. The evidence presented at trial is summarized in our opinion on defendant's direct appeal. State v. Donato, No. A-5631-02 (App. Div. June 7, 2005) (slip op. at 2-6). As explained therein, the matter arises from the homicide of Gary Tomasik (Tomasik), which occurred on December 25, 2000.

On that date, at about 3:00 a.m., defendant called 911 and reported that her boyfriend "had just walked through the door with a knife through his head." Id. at 2. The police responded to the scene and defendant met them at the door. Ibid. An officer entered the apartment and saw Tomasik's body, naked from the waist down, on the bed, with a knife stuck in the right side of his head and a dried pool of blood in his chest area. Id. at 2-3. Defendant suggested that a person named Stanley Rice (Rice), a man with whom she also was having a relationship, might have committed the offense. Id. at 4.

Defendant agreed to accompany the officers to the police station, where she was placed in an interview room. Defendant gave three taped interviews. Id. at 4-6. In the first interview, defendant stated that, at some point during the night, Tomasik had left the apartment to get cigarettes and returned with a knife in his head. Id. at 4-5. She again stated that Rice should be considered a suspect. Id. at 5.

After the first taped interview, defendant asked the investigators, "[W]hat would people think of me if I did this?" Ibid. At that point, the officers advised defendant of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Donato, supra, No. A-5631-02, slip op. at 5. Defendant agreed to waive her Miranda rights and, in the two subsequent taped statements, acknowledged that she stabbed Tomasik after an argument over sex. Id. at 5-6.

The jury found defendant not guilty of murder and passion/provocation manslaughter, but guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, and the weapons charges. The trial court merged the weapons convictions with the manslaughter conviction and sentenced defendant to twenty-seven years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirmed the convictions and sentence imposed on direct appeal. Donato, supra, No. A-5631-02, slip op. at 19. Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied defendant's petition. State v. Donato, 185 N.J. 266 (2005). Defendant then filed a motion for reconsideration of the denial of her petition. The Court granted the motion and remanded the matter to the trial court for re-sentencing in accordance with State v. Natale, 184 N.J. 458 (2005). See State v. Donato, 185 N.J. 383 (2005).

On remand, the trial court imposed the same sentence. We affirmed. State v. Donato, No. A-6457-05 (App. Div. July 30, 2007). Defendant filed a petition for certification with the Supreme Court, seeking review of our judgment. The Court denied the petition. State v. Donato, 192 N.J. 600 (2007). Thereafter, defendant filed a petition for certiorari with the Supreme Court of the United States. The Court denied the petition. Donato v. New Jersey, 552 U.S. 1268, 128 S. Ct. 1674, 170 L. Ed. 2d 373 (2008).

In August 2006, defendant filed a pro se petition for PCR. Counsel was appointed and on July 1, 2008, filed an amended PCR petition. Defendant alleged that she had been denied the effective assistance of trial and appellate counsel. Judge Michael Donio considered the PCR petition on January 5, 2009 and placed his decision on the record on that date, finding that defendant had not established a basis for PCR. The judge entered an order dated January 6, 2009, denying PCR. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT I:

MS. DONATO WAS DEPRIVED [OF THE] EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COURT'S DECISION DENYING HER MOTION TO SUPPRESS.

 

A. APPELLATE COUNSEL EITHER FAILED TO OBTAIN THE MOTION TO SUPPRESS TRANSCRIPT AND CHALLENGE THE TRIAL COURT'S DECISION DENYING THE MOTION TO SUPPRESS OR RAISE THE SUPPRESSION ISSUE BASED ON THE RECORD PROVIDED.

 

B. APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT CHALLENGING THE TRIAL COURT'S DENIAL OF MS. DONATO'S MOTION TO SUPPRESS BECAUSE (1) MS. DONATO WAS IN CUSTODY WHEN SHE CONFESSED PRIOR TO BEING INFORMED OF HER RIGHTS UNDER MIRANDA AND (2) THE CONFESSION WAS BASED UPON THE POLICE FABRICATING EVIDENCE.

 

C. THE COURT ERRED IN THE PROCEDURE AND RESPONSE TO THE JURY QUESTION OF WHAT WAS MORE SERIOUS, AGGRAVATED MANSLAUGHTER OR PASSION/PROVOCATION MANSLAUGHTER.

 

POINT II:

MS. DONATO WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

A. Trial counsel failed to adequately cross-examine Investigator Wade at the suppression hearing.

 

B. Trial counsel failed to request the Hampton jury charge regarding the credibility of Ms. Donato's confession.

 

C. Trial counsel failed to request in response to a jury question that the trial court instruct the jury of the varying degrees of the lesser included offenses.

 

D. Trial counsel failed to impeach the Detective Paparone and Sergeant Kelly with the information that investigator Wade lied to Ms. Donato that there was a bloody fingerprint on the murder weapon to induce her purported confession.

 

E. Defense counsel failed to investigate Ms. Donato's Defense.

 

F. Defense counsel's cumulative errors establish Ms. Donato's claim of ineffective assistance of counsel.

 

POINT III:

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS, COUPLED WITH TRIAL AND APPELLATE COUNSEL'S INEFFECTIVE ASSISTANCE WARRANT REVERSAL OF THE CONVICTION AND A NEW TRIAL.

 

POINT IV:

THE PCR COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING BECAUSE MS. DONATO ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND EVIDENCE OF COUNSEL'S FAILURES [LAY] OUTSIDE THE RECORD.

 

A defendant's claim of ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of similar claims raised under our State Constitution.

In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We have thoroughly reviewed the record in light of the arguments raised by defendant. As explained herein, we are satisfied that the PCR court properly applied the Strickland/ Fritz test and correctly determined that defendant had not been denied the effective assistance of appellate or trial counsel.

II.

We turn first to defendant's contention that she was denied the effective assistance of appellate counsel.

1. Motion to suppress.

Defendant argues that she was denied the effective assistance of appellate counsel because counsel failed to obtain and review all of the transcripts of the suppression hearing. Defendant also argues that appellate counsel was deficient because he failed to challenge on direct appeal the trial court's determination denying her motion to suppress.

We assume solely for purposes of this opinion that appellate counsel erred by failing to obtain one of the transcripts of the suppression hearing and failing to challenge on direct appeal the trial court's decision denying her suppression motion. We conclude, however, that defendant was not prejudiced by these errors.

Defendant contends that the trial court should have suppressed her three taped statements because she was not provided with Miranda warnings when she first arrived at the police station. Defendant contends that she was in custody from the time she entered the police station. We disagree.

When law enforcement officers subject an individual to custodial interrogation, they must inform "the individual that he has a right to remain silent, that any statement he makes may be used against him, and that he has the right to the presence of an attorney." State v. McLaughlin, 310 N.J. Super. 242, 251 (App. Div. 1998) (citing Stansbury v. California, 511 U.S. 318, 321, 114, S. Ct. 1526, 1528, 128 L. Ed. 2d 293, 298 (1994)). "Custodial interrogation is 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Id. at 251-52 (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07).

An individual will be deemed to be in custody "'if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely.'" Id. at 252 (quoting State v. O'Loughlin, 270 N.J. Super. 472, 477 (App. Div. 1994) (internal quotations omitted)). Moreover, "[t]his inquiry must be done on a case-by-case basis by examining the totality of the attendant circumstances." Ibid. (citing O'Loughlin, supra, 270 N.J. Super. at 477).

Following the suppression hearing in this matter, Judge Albert J. Garofolo issued a letter opinion dated May 29, 2002. The judge found that defendant was not in custody prior to being informed of her Miranda rights and that she acknowledged and waived those rights "knowingly and voluntarily." The judge wrote that there was an "abundance of evidence" which indicated that, before she was informed of her Miranda rights, defendant was not in custody and free to leave the police station.

The testimony presented at the suppression hearing indicated that when defendant was taken to the police station, she was placed in an interview room. Defendant was not handcuffed. She was given access to the restroom, provided with something to drink, and allowed to go outside with an officer to smoke a cigarette.

Detective Joseph Paparone (Paparone) testified that the investigators initially considered defendant to be a potential witness to the crime, rather than a suspect. When Detective Larry Wade (Wade) arrived and began to question defendant, he told her that she was not under arrest and she was free to leave if she wished.

Wade testified that he did not provide defendant with Miranda warnings before her first taped statement because at that point, he did not have probable cause to believe that she stabbed Tomasik. After defendant provided her first taped statement, Wade continued to question defendant about the incident.

Defendant asked Wade whether people would be upset with her if "[she] did this." Wade than asked defendant whether she and Tomasik had argued over sex and she said that this could have been the reason why "this" had happened. Wade said that, at this point, he viewed defendant as a suspect and informed her of her rights under Miranda.

We are convinced that, had appellate counsel challenged the denial of defendant's suppression motion on direct appeal, the court's decision would have been affirmed. We are satisfied that there was sufficient credible evidence in the record to support Judge Garofolo's determination that defendant had not been subjected to custodial interrogation before she was informed of her rights under Miranda.

Defendant additionally argues that her confession should have been suppressed because the police improperly induced her to make the statements. Defendant asserts that Wade falsely told her that her bloody fingerprint had been found on the knife used to kill Tomasik. Defendant also asserts that Wade lied when he told her that Rice had an alibi. In our view, these arguments are entirely without merit.

We note that "the use of trickery [is permitted] in interrogations." State v. Patton, 362 N.J. Super. 16, 31 (App. Div. 2003). In the interrogation process, a police officer may "make misrepresentations of fact or suggest that evidence in the form of reports or witnesses exist that will implicate a suspect." Id. at 32. Nevertheless, the police may not fabricate physical evidence in order to elicit a confession. Id. at 49.

Here, defendant alleges that Wade lied or made misrepresentations of fact to induce her to confess. However, defendant makes no claim that Wade or any other police officer used fabricated physical evidence to induce her to confess. Furthermore, the record does not support defendant's assertions that Wade lied or misrepresented facts regarding the fingerprint or Rice's alibi.

The record shows that Wade merely referred to a fingerprint on the knife found protruding from Tomasik's head. He never suggested to defendant that her fingerprint had been found on the knife.

Furthermore, the record does not support defendant's assertion that Wade lied by telling her that Rice had an alibi before the police had investigated his alibi. It is unclear from the record when the police concluded that Rice had an alibi. In any event, even if Wade told defendant that Rice had an alibi before the police had investigated the matter, any such statement would not have required the suppression of defendant's confession.

2. The trial court's response to jury question.

Defendant next argues that appellate counsel was deficient because he failed to seek reversal of her conviction on the basis that the trial court erred in its response to a jury question. Here, the trial court provided the following response to a question by the jury posed during its deliberations:

I have another question from you, that reads as follows: Which is the more serious charge, passion provocation or aggravated manslaughter? The way I can answer that is this, you should not concern yourself with what is more or less serious. You are to concern yourselves with only taking the facts as you find them to be and meshing it together with the law as I instructed to you and that you have to see what, if anything, fits.

 

Defendant argues that the court should have told the jury that passion/provocation manslaughter is a second-degree crime and aggravated manslaughter is a first-degree crime. Defendant contends that the court's response was reversible error because the verdict sheet made it appear that passion/provocation manslaughter was "more serious" than aggravated manslaughter. Again, we disagree.

We are not convinced that, had appellate counsel raised this issue on appeal, the case would have been decided differently. The court's instruction to the jury was legally sound. See State v. Cooper, 151 N.J. 326, 371 (1997) (noting that "juries in criminal cases are not informed of the consequences of returning a guilty verdict"). "'It is the function of the jury to adjudge the degree of guilt and for the court to pronounce the sentence.'" Ibid. (quoting State v. Grillo, 11 N.J. 173, 189 (1952)).

We accordingly conclude that Judge Donio correctly found that defendant had not been deprived of the effective assistance of appellate counsel.

III.

We next consider defendant's arguments that she was denied the effective assistance of trial counsel.

Defendant argues that her trial attorney was deficient because he failed to: adequately cross-examine Wade at the suppression hearing; request a charge pursuant to State v. Hampton, 61 N.J. 250 (1972); seek an instruction on whether certain charges were first or second-degree offenses; impeach Paparone and Sergeant Robert Kelly with information that Wade lied to defendant to induce her to confess; and investigate potential witnesses who purportedly observed Tomasik beating defendant and defendant's allegations that Rice was the perpetrator. Defendant additionally claims that she was denied the effective assistance of counsel as a result of the cumulative errors of her trial attorney. We find no merit in these arguments.

We are not convinced that trial counsel's cross-examination of Wade, Paparone or Kelly was deficient. Although counsel might have further questioned these witnesses regarding Wade's alleged false statements, it is highly improbable that answers to such questions would have led to the suppression of defendant's confession. As we have explained, the record does not support defendant's assertion that Wade made false statements regarding the fingerprint on the knife found in Tomasik's skull or Rice's alibi. Even if he did, such statements would not have required the suppression of defendant's confession.

We also are not convinced that trial counsel was deficient in failing to seek an instruction that passion/provocation manslaughter is a second-degree offense and aggravated manslaughter is a first-degree offense. As we stated previously, the court was not required to instruct the jury on the degrees of the various homicide charges that it was considering. Had trial counsel sought this instruction, the trial court would properly have denied the application.

Furthermore, we see no merit in defendant's assertion that her trial attorney was deficient in failing to seek a Hampton charge. We note that, in her direct appeal, defendant argued that the trial court erred by failing to provide the Hampton charge in order to guide the jury in its consideration of her confession. Donato, supra, No. A-5631-02, slip op. at 15.

We held that there was sufficient evidence other than defendant's statements which established her guilt. Ibid. We stated that, although defendant had not raised the issue at trial, the absence of the Hampton charge "was not an error clearly capable of producing an unjust result." Id. at 16. We are therefore convinced that, even if trial counsel erred by failing to seek a Hampton charge, defendant was not prejudiced by the error. Moreover, we are satisfied that the result here would have been the same, even if the charge had been given.

We also see no merit in defendant's assertion that her trial attorney was deficient because he failed to adequately investigate her defense. Defendant claims that counsel erred by failing to seek and present testimony to show that Tomasik had subjected her to physical abuse. She also claims that counsel erred by failing to investigate whether Rice was the perpetrator of the crime.

However, as the trial court noted at sentencing, the State's domestic violence registry indicated that defendant herself was the defendant in six domestic violence cases. Thus, if defense counsel had raised the issue of past domestic violence, this would not have been a sound trial strategy. In addition, there is no evidence to support defendant's assertion that Rice may have killed Tomasik.

Indeed, the evidence presented at trial, including defendant's own statements, established that she, not Rice, stabbed Tomasik. The evidence showed that Tomasik was killed inside his own apartment. Defendant conceded that she had been in the apartment with Tomasik since the day before he was killed. Defendant claimed that, at some point, Tomasik left the apartment to get cigarettes and returned with the knife protruding from his head. However, there was no physical evidence indicating that Tomasik had been stabbed before he returned to his apartment.

Indeed, the officers who responded to the scene testified that they did not find a trail of blood leading to the apartment. Furthermore, Tomasik was stabbed with a knife that matched another knife in his kitchen. Defendant was in the apartment when the officers arrived. There was blood on her hands. In light of that evidence, we find no merit in defendant's contention that her trial attorney erred by failing to investigate Rice's purported involvement in Tomasik's death.

We have considered the other contentions raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.