STATE OF NEW JERSEY v. PATRICK PANTUSCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6542-06T46542-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK PANTUSCO,

Defendant-Appellant.

_______________________________

 

Submitted: November 18, 2009 - Decided:

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 96-07-0997.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from an order of June 22, 2007, denying his petition for post conviction relief (PCR) without an evidentiary hearing. He claims that his felony murder conviction must be reversed due to the ineffective assistance of trial counsel or that he is entitled to an evidentiary hearing to prove counsel was ineffective and that he is also entitled to an evidentiary hearing on his claim that he did not knowingly and voluntarily waive his right to testify on his own behalf.

We affirmed the felony murder conviction and fifty-year sentence with thirty years before parole eligibility with additional mergers into the felony murder. See State v. Pantusco, 330 N.J. Super. 424 (App. Div.), certif. denied, 165 N.J. 527 (2000). Our holding in Pantusco that the convictions, which were not the first felony that set into motion the murder, would merge with the felony murder conviction was subsequently overruled in State v. Hill, 182 N.J. 532, 548 (2005), but the State has never sought to remedy that holding in this case. We subsequently affirmed the denial of defendant's first PCR petition based on the ineffective assistance of counsel for failing to pursue a lesser-included manslaughter by eluding charge. However, we remanded that matter to permit defendant to assert new claims as part of his first petition for PCR. We now review the denial of those claims.

Defendant contends that defense counsel's concessions of guilt in the opening statement constituted ineffective assistance of counsel and thereby mandates a reversal of his felony murder conviction. In the alternative, defendant argues he is entitled to an evidentiary hearing on the issue. In response, the State asserts that "defense counsel's concessions . . . cannot be deemed to be ineffective assistance of counsel" because defense counsel never conceded the predicate felony to felony murder, defense counsel's concessions were made for tactical reasons, and that such a concession is not the same as a guilty plea and does not require defendant's consent. The PCR court concluded that defense counsel's concession was "a tactical move" and did not rise to the level of ineffective assistance of counsel.

It is, of course, well established that a person accused of crimes is guaranteed the effective assistance of counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the defense of the accused. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, supra, 105 N.J. at 58. A defendant is only entitled to an evidentiary hearing on whether he was effectively represented by counsel when there are relevant matters outside the trial record and a prima facie claim of ineffective assistance has been established. See State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the likelihood of succeeding under the Strickland test, State v. Preciose, supra, 129 N.J. at 462, but in so doing, courts should view the facts in the light most favorable to a defendant. Ibid.

In assessing the first prong of the Strickland test, a court must determine whether "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)). "Thus, an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." Castagna, supra, 187 N.J. at 314 (citing State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983)). "[S]trategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 315 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991).

In assessing the second prong of the Strickland test, courts must determine if defendant has shown that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "It is not enough for the defendant to show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).

Therefore, in order for defendant here to sustain a claim of ineffective assistance of counsel, defendant must demonstrate an objectively deficient performance and that the deficient performance caused such prejudice to the defendant that it is reasonably probable that the result would be altered. In other words, we must have no confidence in the result. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

I

Defense counsel said the following in his opening statement:

This was a terrible day, a tragic day, a sad day. You're going to find Patrick Pantusco guilty of the car theft, and you're going to find Patrick Pantusco guilty of these person [sic] snatchings because he indeed was the person who did these purse snatchings, but I'm going to tell you now, Patrick Pantusco is not guilty of felony murder. And Judge Sullivan is going to talk to you about the meaning of felony murder and what felony murder is. And you're not going to find Patrick Pantusco guilty of aggravated manslaughter.

At the end of the opening statement, defense counsel continued by stating "The State has a heavy burden, and what we're saying here is Patrick Pantusco is not guilty of felony murder. He's not guilty of aggravated manslaughter. If he's guilty of anything, its manslaughter, of being reckless."

Defense counsel started his summation by acknowledging defendant "broke into and stole a Jeep Explorer," thereby "burglar[izing] that vehicle." He did not acknowledge an intent to steal the credit cards in the Jeep, but did acknowledge he "snatch[ed]" the purses of three women at three different locations, and continued:

How did he commit those purse snatches? And I use that term advisedly, ladies and gentlemen, because you will remember that despite the fact that the police officers took the stand and kept talking about, now 17 months later, these robberies, you heard the broadcast, the radio broadcast that day, and they all referred to the term purse snatches. You know that Detective Kevin Smith of Paramus Police Department used the term purse snatch in his written report and admitted as such. So everyone that day was dealing with a purse snatch. The judge will charge you with respect to the law on that and you'll listen carefully because the degree of force necessary to effectuate a purse snatch may be the difference in some of these cases between a robbery and a purse snatch.

. . .

He took these purses but not with a gun or a knife as you may have traditionally have thought of robbery - not with a gun or a knife. He did it with a kind word, with politeness, with deception and with stealth. Now does that make him a Boy Scout? No, it does not, clearly it does not. But it does mean that there's a difference between that and a robbery.

(Emphasis added).

Defense counsel further stated that defendant was driving his car "recklessly," but it wasn't during a "flight" from a robbery even if there was a robbery. He continued:

Now had he been fleeing from a stolen car would that have been murder and Stephanie Carol died? No, no, not murder. Suppose he had been distributing drugs and he fled and Stephanie Carol died, would that be murder? No, you couldn't charge murder then, no. Well suppose he pointed a gun at someone and threatened them because he didn't like them and then put that gun in his pocket and he drove away and he killed Stephanie Carol, would that be murder? No. It has to be specific crimes, in this case robbery. So you can see how the exact same situation, someone fleeing from a crime, the exact same thing happening, it's not murder. They couldn't even charge murder, it wouldn't even come close to being murder. Why is it here? Just because the crime is whether it's a purse snatch or a robbery. If it's a robbery it suddenly becomes murder where it really is just this terrible accident. It's an artificial creation. But this artificial creation has very specific rules before you can invoke this artificial creation instead of what this really is, someone driving a car recklessly and causing the senseless death of another, because that's what really happened here.

(Emphasis added).

Finally, counsel emphasized that the State had to prove an "immediate flight from the crime of robbery" to have a felony murder based on robbery and stated that defendant "may have been fleeing from arrest but that's not in immediate flight from the robbery." He further stated there was a break between the offenses and the chase, and that defendant was even not guilty of aggravated manslaughter, while operating the vehicle "recklessly," because there was no "extreme indifference to the value of human life." He planted the seed for a verdict of guilt on "vehicular homicide" because he told the jury that defendant "operated his vehicle recklessly and that he killed" the victim, and that defendant will be punished, but "this 22 year old boy" was not a "killer" and not guilty of "murder."

The statements in counsel's opening statement do concede defendant's guilt of the purse snatchings, but his summation demonstrates that the purpose of the concession was to emphasize the difference between a purse snatching and a robbery. In context, counsel's obvious strategy was to avoid a conviction of a predicate felony necessary for a felony murder conviction. Thus, defendant's present attack is on the type of "strategy" which cannot give rise to a claim of ineffective assistance of counsel. See e.g., State v. Fritz, supra, 105 N.J. at 54. Even if the opening statement was not sufficiently clear to the jury that the concession was to theft only, as opposed to robbery, the summation occurring just before the final charge made that clear.

The fact there was no concession of participation in a robbery is critical, because such a concession in this case where a fatality ensued would be an admission of felony murder. See State v. Harrington, 310 N.J. Super. 272, 281-82 (App. Div.), certif. denied, 156 N.J. 387 (1998) (where the "defense counsel expressly 'concede[d] that [defendant] was guilty of [the underlying] robbery'" and counsel "apparently attempted to retract his earlier concession" when he realized its impact on the felony murder charge). Given the anticipated final instructions, here the concession focused the jury on returning a verdict for lesser included thefts by purse snatchings that did not include all the elements of robbery, the predicate for a felony murder conviction and its required sentence of thirty years before parole eligibility. It is significant to note that the judge charged the jury on lesser included theft offenses on counts ten, twelve, and thirteen. See also State v. Sheika, supra, 337 N.J. Super. at 242, where we were "satisfied that counsel's concession [of robbery] constituted a reasonable strategy in light of the evidence presented" concerning the cause of the victim's death. As in Sheika, "counsel's concession here was part of a carefully crafted defense designed to result in an acquittal of the felony murder count." Id. at 243.

The defense strategy, although unsuccessful, was sound. It had some prospect of success because defendant conceded wrongdoing in a case involving the death of an innocent woman as a result of a chain of events started by defendant's conduct. But it left the jury the option of convicting him of certain crimes, including lesser included offenses, without convicting him of felony murder.

However, defendant further contends that defense counsel's concession required defendant's consent because the concession effectively functioned as a guilty plea. He states "[t]he decision to plead guilty or not guilty is reserved solely for the accused" and that counsel "may not stipulate to facts which amount to the functional equivalent of a guilty plea without the knowing and voluntary consent of the client." Those propositions seem fundamental. But, as already noted, here the concession was not to robbery or to felony murder. It was made to avoid a conviction for those more serious offenses.

We agree with the PCR judge's reliance on Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004), a capital case, which involved a "defense counsel's strategic decision to concede, at the guilt phase of the trial, the defendant's commission of murder, and to concentrate the defense on establishing at the penalty phase, cause for sparing the defendant's life." Id. at 178, 125 S. Ct. at 555, 160 L. Ed. 2d at 572. The Court held that defense counsel must consider both the guilt and penalty phases in determining how to proceed in a capital case; however, Justice Ginsburg wrote that when "counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest and the defendant is unresponsive, counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent." Id. at 192, 125 S. Ct. at 563, 160 L. Ed. 2d at 581. The Court's holding narrowly applied to a capital prosecution, but it is still relevant to this case in terms of the lack of need for a defendant's express consent to trial strategy.

The Court expressly discussed situations in which the defense attorney has a duty to consult with the client and whether concessions of guilt function as a guilty plea. Id. at 187-88, 125 S. Ct. at 560-61, 160 L. Ed. 2d at 578. The Court stated that "[a]n attorney undoubtedly has a duty to consult with the client regarding 'important decisions,' including questions of overarching defense strategy," but that obligation "does not require counsel to obtain the defendant's consent to 'every tactical decision.'" Id. at 188, 125 S. Ct. at 560, 160 L. Ed. 2d at 578 (citations omitted). The Court pointed out that the defendant has the ultimate authority to plead guilty, waive a jury, testify, or take an appeal. Ibid. For these decisions, defense counsel is required to consult with the defendant and obtain consent to the recommended course of action. Ibid.

However, the Court disagreed with the argument that concessions of guilt made to a jury are the functional equivalent of a guilty plea. Id. at 188, 125 S. Ct. at 561, 160 L. Ed. 2d at 578. Despite any concessions, a defendant retains all of the rights of a defendant in a criminal trial. Ibid. The Court noted that the defense counsel in Nixon did explain his proposed trial strategy, but was not required to gain express consent before conceding his guilt to some offenses. Id. at 189, 125 S. Ct. at 561, 160 L. Ed. 2d at 579.

Based on Nixon, we conclude that defense counsel here was not obligated to obtain defendant's consent to the concession regarding the purse snatchings and the concessions to other lesser included offenses. It was not the equivalent to a guilty plea because defendant still retained all of the rights of a criminal defendant. Defense counsel's concessions served instead as general trial strategy in a legitimate effort to advance the defendant's best interest. See Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S. Ct. 646, 98 L. Ed. 2d 798, 816 (1988) ("Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has and must have full authority to manage the conduct of the trial.") Even were it conceded arguendo that counsel's performance was deficient because he failed to consult with defendant regarding the concessions, defendant cannot show that the concessions were prejudicial because of the overwhelming evidence of defendant's guilt of the facts conceded. See United States v. Thomas, 417 F.3d 1053, 1059-60 (9th Cir. 2005), cert. denied, 546 U.S. 1121, 126 S. Ct. 1095, 163 L. Ed. 2d 909 (2006) (two of three judges joined concurring opinion to the effect that defense counsel's "failure to consult and obtain consent" to conceding guilt of one charge was incompetent but not prejudicial); United States v. Larson, 66 M.J. 212, 218-19 (C.A.A.F. 2008), cert. denied, 129 S. Ct. 267, 172 L. Ed. 2d 148 (2008) (same). Nor is this a case in which the defendant adamantly objected to counsel's concession of guilt. See Cooke v. State, 977 A.2d 803, 847 (Del. 2009).

II

Defendant also complains he was observed or could have been observed in "handcuffs, leg irons and a waist harness and chains" during trial. However, the jury would understand that a homicide defendant would be in jail pending trial, and it was so instructed. The judge expressly charged the jury at the outset of the trial:

Now there's one other issue too that Mr. -- in cases such as this where there's a felony murder or -- not just felony murder but any serious case such as this, serious charges, it's customary that the defendant is incarcerated. Now Mr. Pantusco is incarcerated. And if you see him with handcuffs or with shackles on, that's the customary procedure if he's going to be over in the Bergen County Jail and be brought over here for trial.

You are not to draw any negative or prejudicial inferences from that. That doesn't mean he's dangerous or anything. This is the procedure that is followed by anybody of this kind of serious case. So if you see him in the hallway or during the course of the trial, you're not to draw any inference, any negative inference, or hold it against him. That's a procedure in which a case like this would be handled. And that's why, okay? Do you understand that? And -- otherwise we try to avoid you seeing that and we're going to be here three weeks. We're going to be living together for three weeks, all of us. So please, if you see Mr. Pantusco in handcuffs, that is not to be held against him. That's just the procedure and it's common practice for a case of a serious nature of this kind.

Given that sound, curative instruction, we see no basis for PCR, whether or not the defendant can raise the claim for the first time through a PCR application. See R. 3:22-4. This subject was spelled out in the transcripts available on the direct appeal.

Defendant also claims entitlement to an evidentiary hearing because he was forced by his father to follow the advice of the attorneys who the father retained and who recommended against defendant's testimony at trial even though defendant now says he wanted to testify. He points to testimony in a civil action as indicating a break in his driving or flight, so if he testified, he might well not have been convicted of felony murder.

There is something unseemly about a father directing his son, under threat of losing counsel, not to testify and then, when that strategy fails, seeking a new trial on the basis of a certification from the father, as well as the defendant, that he was so coerced. A defendant could always claim similar coercion in seeking PCR. While the certifications do present facts which warrant a claim of involuntary waiver of the right to testify, and they are uncontested, we find the following colloquy which we quote at length to be of great significance. The following occurred after the defense presented its case and before the State's rebuttal was presented:

THE COURT: Mr. Rem, would you like to voir dire your client?

MR. REM: I would appreciate that.

THE COURT: As to his choice to take the -- to testify on his own behalf or not.

MR. REM: Yes, sir.

THE COURT: Okay?

VOIR DIRE OF THE DEFENDANT BY MR. REM:

MR. REM: Mr. Pantusco, you are obviously aware that you are on trial here, correct?

THE DEFENDANT: Yes.

MR. REM: And you understand that as part of your rights at trial you have the right to testify on your own behalf? You understand that?

THE DEFENDANT: Yes.

MR. REM: Have we discussed that not only during this case but prior to this case, right from the very outset?

THE DEFENDANT: Yes.

MR. REM: Now do you understand that you do not have to take the stand if you do not wish to?

THE DEFENDANT: Yes.

MR. REM: Do you understand that if you decide not to take the stand that the Prosecutor cannot comment in his summation on that fact? This is he cannot say to the jury ladies and gentlemen of the jury, he did not testify, what's he trying to hide, or words to that effect? In fact he cannot and I'm sure will not make any comment whatsoever regarding that. Do you understand that?

THE DEFENDANT: Yes.

MR. REM: Now do you understand that Mr. Weichsel and I had discussed with you whether it is a proper strategic decision for you to take the stand?

THE DEFENDANT: Yes.

MR. REM: Do you understand our discussions however, are nothing more than to educate and inform you as to what the better cause of action may be? Do you understand that?

THE DEFENDANT: Yes.

MR. REM: Do you understand that the final decision if yours and yours alone? You understand that?

THE DEFENDANT: Yes.

MR. REM: and even if we give you an opinion one way or the other you have the right, in fact the obligation, to reject that opinion if you feel differently? Do you understand that?

THE DEFENDANT: Yes.

MR. REM: Have you had a chance to think about this decision?

THE DEFENDANT: Yes.

MR. REM: Have you had a chance to ask us any questions that you may have had with respect to this decision?

THE DEFENDANT: Yes.

MR. REM: And have we answered those questions for your satisfaction?

THE DEFENDANT: Yes.

MR. REM: Based upon the time you've had to think about this decision and the advice we may have given you, but understanding it is your decision and your decision alone, what is your decision with respect to whether you wish to take the stand?

THE DEFENDANT: I don't.

THE COURT: I'm sorry, I didn't hear that.

THE DEFENDANT: I'm not going to.

THE COURT: You elect not to take the stand?

THE DEFENDANT: Yes.

After discussing defendant's further election concerning the jury charge, the colloquy ended as follows:

THE COURT: All right? If you change your mind between now and Monday before summations that you wish to testify just let me know.

THE DEFENDANT: Yes, sir.

THE COURT: And you'll be able to do that. But after we begin summations then I will consider that you are not testifying however, you will still have the option to ask the court to give that instruction up until the time I begin the charge. All right?

THE DEFENDANT: Yes, sir.

THE COURT: And you can -- right in the middle of the charge. All you have to do is let your attorney know that you changed your mind, all right? Do you understand everything I've said?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. And no one's forcing you not to take the stand?

THE DEFENDANT: No, sir.

THE COURT: Are you doing it of your own free will?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. I'm satisfied that the defendant -- you may be seated. I'm satisfied that the defendant understands the procedure, understands his options and had elected voluntarily and freely to -- not to testify at least at this time.

On balance, we defer to the findings of the PCR judge who chose to enforce the waiver for stated reasons, including that it was "hard for this court to believe" the present claim. While there was no evidentiary hearing to weigh credibility, we accept the judge's firm belief that defendant's testimony would have made no difference and that, had he testified at trial, the judge "would have soundly questioned his lawyer's decision to make him testify . . . [.]" We do not read State v. Sheika, supra, 337 N.J. Super. at 248-49, which stated that it is defense counsel's responsibility, and not the responsibility of the trial judge, to advise a defendant on whether to testify, as precluding disposition of a PCR on this basis because the trial court's review of the record convinces us that defendant's claim, even if true, could not make a difference in the result.

We reject the pro se claims asserted by defendant on this appeal. R. 2:11-3(e)(2). They were covered well by the PCR judge.

 
We affirm the denial of PCR substantially for the reasons of Judge Donald R. Venezia in his oral opinion of June 20, 2007, as supplemented herein.

Counsel also gave an impassioned closing to the effect that defendant could not be convicted of felony murder because the death was too remote and attributable to the police conduct in conducting a chase which violated the Attorney General's guidelines. That subject was reviewed on the direct appeal. State v. Pantusco, supra, 330 N.J. Super. at 441-43. Counsel also developed the lack of a "flight." In other words, he conceded the basis of guilt for lesser offenses in the hopes of avoiding a felony murder conviction.

Defendant's father certified in the PCR that he retained defense counsel and with a friend, "decided not to include Patrick in any trial strategy or decision" because of his age and "emotional stability." The father "[a]t no time" granted counsel "permission to admit to Patrick's guilt of any crime." Further "Patrick was adamant about his desire to testify on his own behalf" despite his attorney's advice, which led the father to advise defendant that he would "no longer pay them to represent [defendant who would then have to retain his] own attorney." He ordered defendant "to do whatever the lawyers tell you to do." Defendant provided a similar certification and stated he did not have money to hire an attorney. Defendant further certified that although he stated in court that he "was voluntarily giving up [his] right to testify," he "felt he had no choice but to give in to my father's threat."

As to credibility, we cannot believe defendant would not have had newly retained counsel raise this point on the direct appeal if he felt as strong as he now claims he felt. Alternatively, if defendant is asserting the truth at present, all counsel through the direct appeal would have ignored the requests and decision that defendant had the right to assert.

(continued)

(continued)

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A-6542-06T4

July 26, 2010