STATE OF NEW JERSEY v. DAVID AMODIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4350-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID AMODIO,

Defendant-Appellant.

_______________________________________

November 5, 2012

Submitted October 10, 2012 Decided

Before Judges Reisner and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-12-3700.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant David Amodio appeals from an order entered by the Law Division on November 12, 2010, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged with first-degree murder of Kollin Pimental (Kollin), N.J.S.A. 2C:11-3(a)(1) or (2) (count one); first-degree murder of Lisa Pimental (Lisa), N.J.S.A. 2C:11-3(a)(1) or (2) (count two); first-degree felony murder of Kollin, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree felony murder of Lisa, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) (count five); third-degree hindering his own apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9(b) (count seven).

The evidence presented at trial established that in September 2000, defendant moved into a home in Sicklerville, New Jersey with his girlfriend Lisa and Kollin, her son by a previous relationship. After a domestic dispute that occurred on October 11, 2000, Lisa obtained a temporary restraining order which barred defendant from the home and having any contact with her.

Sometime after midnight on October 29, 2000, a neighbor reported a fire at the home, and observed defendant stumbling along the driveway. Defendant fell to the ground and said that his "wife" and the baby were in the house. According to a police officer who responded to the emergency call, defendant's clothes were on fire and he was "smoldering." Defendant was removed by ambulance and taken to a hospital. Later, the fire marshals found Lisa's and Kollin's burned bodies in the house. Parts of a broken hammer were found near Lisa's body.

The Camden County Medical Examiner performed autopsies on the victims' bodies. He testified that Lisa died from a depressed skull fracture that caused bleeding and bruising to the brain. The Medical Examiner also testified that Kollin died as a result of smoke inhalation and thermal burns, with no other contributing cause.

The Deputy Chief Fire Examiner for Camden County testified that he believed the fire was started with an accelerant and an open flame. He said that the fire began on the first floor of the house and traveled to the second floor. Tests revealed a residue of gasoline on the socks, jeans and sneakers that defendant was wearing at the time of the fire.

Defendant testified about the incident that led to the issuance of the temporary restraining order. Defendant said he was exercising and inadvertently caused Lisa to fall from the bed. He stated that, despite the restraining order, he met Lisa on October 19, 2000, in an effort to resolve their difficulties.

According to defendant, Lisa called him the next day to "work things out." He testified that, several days later, he accompanied Lisa to a store to purchase a washing machine and clothes dryer. Defendant installed the machines in the house. Defendant further testified that, the week before the fire, he performed work around the house.

Defendant also said that on the morning of October 28, 2000, he provided money to Lisa for her car payment, and purchased new tires for Lisa's car. Defendant helped Lisa and Kollin decorate the house for Halloween. Later, defendant and Lisa ordered Chinese food and watched television.

Defendant left the house sometime after midnight. He testified he went to the shed in the rear of the house to get some tools for repairs he was going to make at his father's house. Defendant was returning to the shed when he saw the fire. He denied doing anything to hurt Lisa or Kollin.

The jury found defendant not guilty of the murder of Kollin as charged in count one, but found him guilty of the lesser-included offense of first-degree aggravated manslaughter. The jury found defendant not guilty of the murder of Lisa, as charged in count two, but found him guilty of second-degree passion/provocation manslaughter.

The jury additionally found defendant guilty of first-degree felony murder of Kollin, as charged in count three; not guilty of felony murder of Lisa, as charged in count four; not guilty of first-degree arson, as charged in count five, but guilty of the lesser-included offense of third-degree arson; guilty of hindering his own apprehension or prosecution, as charged in count six; and guilty of contempt, as charged in count seven.

At sentencing, the trial court merged counts one and five with count three, and sentenced defendant to life imprisonment on count three, with a thirty-year period of parole ineligibility. The court imposed a consecutive term of ten years on count two, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed concurrent terms of four years on count six and nine months on count seven.

Defendant appealed from the judgment of conviction and raised the following arguments:

I. THE ITEMS SEIZED AFTER THE CHIEF FIRE MARSHALL FOUND TWO BODIES IN THE BURNED HOME SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE DID NOT OBTAIN A SEARCH WARRANT AND NO EXIGENT CIRCUMSTANCES WERE PRESENT.

II. THE ADMISSION OF THE TEMPORARY RESTRAINING ORDER PRECLUDED THE DEFENDANT FROM RECEIVING A FAIR TRIAL WHERE THE TRIAL COURT'S LIMITED INSTRUCTION FOCUSED THE JURY'S ATTENTION ON THE DEFENDANT'S PROPENSITY TO COMMIT THE MURDER OF HIS GIRLFRIEND. (Not raised below).

III. THE DEFENDANT'S CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE SET ASIDE BECAUSE THE JURY FAILED TO RECOGNIZE EVIDENCE POINTING TO REASONABLE DOUBT.

IV. A TRIAL COURT MUST, UNDER THE NEW RULE OF LAW, WEIGH THE AGGRAVATING AND MITIGATING FACTORS UNENCUMBERED BY THE PRESUMPTIVE STATUTORY TERM WHEN SENTENCING THE DEFNDANT. (Not raised below).

V. THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE TERM WHERE IT DETERMINED THE CRIMES REMOTE AND INDEPENDENT FROM ONE ANOTHER.

VI. UNDER THE PRE-AMENDMENT STATUTE, NERA DOES NOT APPLY TO A HOMICIDE WHICH WOULD OTHERWISE BE MURDER BUT FOR ITS COMMISSION IN THE HEAT OF PASSION (Not raised below).

We affirmed defendant's convictions and the sentences on counts three, six and seven but remanded the matter for re-sentencing on count two. State v. Amodio, 390 N.J. Super. 313, 334 (App. Div. 2007). The trial court re-sentenced defendant on June 22, 2007, and sentenced defendant to a consecutive term of seven years of incarceration on count two, with a NERA period of parole ineligibility. The Supreme Court thereafter denied defendant's petition for certification. State v. Amodio, 192 N.J. 477 (2007).

II.

On October 19, 2007, defendant filed a pro se petition for PCR, alleging that he was denied the effective assistance of counsel. The court appointed PCR counsel, and counsel filed a brief in which he raised the following arguments:

POINT I

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL BECAUSE TRIAL AND APPELLATE COUNSEL FAILED TO ARGUE THAT EVIDENCE OF THE VICTIM'S BRUISING OF HER ARMS WAS INADMISSIBLE AND IF ADMISSIBLE THAT A LIMITING INSTRUCTION WAS WARRANTED

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND/OR APPELLATE COUNSEL, IN CONTRAVENTION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION, DUE PROCESS OF THE LAW AND RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL AND/OR APPELLATE COUNSEL FAILED TO ARGUE THAT THE STATE'S ARGUMENTS IN OPENING AND CLOSING ARGUMENTS WERE IMPROPER

POINT III

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DUE PROCESS OF THE LAW AND RIGHT TO A FAIR TRIAL SINCE THE COURT FAILED TO VOIR DIRE JURORS AS TO WHETHER THEY READ A NEWSPAPER ARTICLE ABOUT THE TRIAL AND WHETHER THIS [A]FFECTED THEIR RIGHT [SIC] TO BE IMPARTIAL DESPITE INDICATIONS THAT IT WOULD AND TRIAL COUNSEL FAILED TO OBJECT

POINT IV

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DUE PROCESS OF THE LAW AND RIGHT TO A FAIR TRIAL SINCE THE COURT FAILED TO PROPERLY CHARGE THE JURY AS TO [ITS] DUTY TO CONTINUE TO DELIBERATE AND FAILED TO CORRECT THE JURORS['] IMPRESSION THAT THEY HAD TO REACH A VERDICT

POINT V

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DUE PROCESS OF THE LAW AND RIGHT TO A FAIR TRIAL SINCE THE COURT DECLINED TO DECLARE A MISTRIAL DUE TO JUROR INTERFERENCE

POINT VI

THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE AS CONSECUTIVE SENTENCES WERE IMPOSED

POINT VII

THE CUMULATIVE EFFECT OF THE GROUNDS FOR POST-CONVICTION RELIEF IDENTIFIED BY DEFENDANT WARRANT VACATION OF HIS CONVICTIONS AND SENTENCES, AND THE GRANT OF A NEW TRIAL

The PCR court considered the petition on November 12, 2010, and placed its decision on the record that day. The court concluded that defendant's claims were barred by Rule 3:22-4 because they could have been raised on direct appeal, and his challenge to the sentence was barred by Rule 3:22-5 because that issue had been decided in defendant's direct appeal. The court nevertheless addressed and rejected defendant's claims that he had been denied the effective assistance of trial and appellate counsel. The court entered an order dated November 12, 2010, denying PCR. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I

DEFENDANT'S PCR PETITION WAS NOT PROCEDURALLY BARRED

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND/OR APPELLATE COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS WAS ESTABLISHED

A. Trial counsel "Opened The Door" To "Other Crimes, Wrongs, Or Acts" Evidence And Appellate Counsel Failed to Raise This Issue on Direct Appeal

B. Appellate Counsel Failed to Raise Jury Intrusion By An Extraneous Influence

Defendant has also filed a supplemental pro se brief in which he argues that: (1) he was denied the effective assistance of trial and/or appellate counsel because they failed to argue that the State's opening and closing arguments were improper; (2) he was denied the effective assistance of trial counsel because the court failed to properly charge the jury as to its duty to continue to deliberate and failed to correct the jury's impression that they had to reach a verdict; and (3) he received an illegal consecutive sentence.

III.

Defendant argues he was denied the effective assistance of trial and appellate counsel. We do not agree.

To establish a prima facie case for ineffective assistance of counsel, a defendant must show a reasonable likelihood of success under the two-part test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The Strickland test requires the defendant to show that (1) the representation by his attorney fell below an objective standard of reasonableness; and (2) but for counsel's errors, the results 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.

"Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Consequently, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" because of the inherent difficulties associated in evaluating counsel's performance. Ibid. A defendant must, therefore, "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

Defendant claims that his attorney erroneously had him testify on direct examination about the October 11, 2000 incident that led to the issuance of the temporary domestic violence restraining order. He contends that this testimony opened the door to "devastating" cross-examination and rebuttal evidence that Lisa's arm was bruised during the incident.

In State v. Chenique-Puey, 145 N.J. 334, 343 (1996), the Court held that a trial court "should sever and try sequentially charges of a contempt charge of a domestic violence restraining order and of an underlying criminal offense when the charges arise from the same criminal episode." The trial court should first try the underlying offense. Ibid. "Evidence of a previously issued domestic violence restraining order generally will be admissible in that trial." Ibid. However, if the defendant testifies at trial, the restraining order "would be admissible for the limited purpose of impeaching the defendant's testimony." Ibid.

Here, defendant moved to sever the contempt charge from the other counts for purposes of trial. The State did not oppose the motion. When the motion was argued, defense counsel noted on the record that he had discussed the Chenique-Puey decision with defendant and had explained that, if defendant elected to testify at trial, he could be cross-examined about the restraining order and the facts that led to its issuance. The court granted the motion.

At trial, defendant's counsel informed the court that defendant intended to testify. The court noted that, if defendant testified, the restraining order would be admissible for impeachment purposes. Defendant then testified about the October 11, 2000 incident, which led to the issuance of the restraining order. The parties thereafter agreed "to have the jury consider the contempt charge with the other charges." Amodio, supra, 390 N.J. Super. at 330.

The PCR court determined that defendant's trial attorney was not deficient in having defendant testify concerning the restraining order and the surrounding events. The court noted that, since defendant chose to testify, the restraining order and the related events were admissible for impeachment purposes. The court found that counsel made a strategic decision to have defendant explain these matters in an effort to minimize this evidence.

The PCR court additionally found that trial counsel's representation of defendant was "the opposite of substandard performance." The court noted that counsel had convinced the jury to find defendant not guilty of both murder charges and one felony murder charge. The court also noted the difficult task that counsel faced, given the strength of the evidence the State had presented.

We are satisfied that the PCR court correctly determined that defendant was not denied the effective assistance of trial counsel. We are also satisfied that appellate counsel was not deficient for failing to raise this issue on appeal.

IV.

Defendant also argues that his appellate counsel erred by failing to raise an issue of "jury intrusion by outside influence" in his appeal. Again, we disagree.

The record indicates before the trial continued on the morning of April 2, 2004, the judge asked the jurors if they had been exposed to media coverage or approached by anyone regarding the case. After one juror indicated she had been approached regarding the case, the judge questioned all of the jurors, in the presence of counsel.

Juror number nine stated that while she was waiting to enter the courtroom that morning, "a gentleman walked past, hit my badge, and said, 'Guilty.'" After further questioning, the judge asked the juror if she felt "threatened in any way[,]" and the juror responded in the negative. The juror also stated that the incident would not interfere with her ability to be fair and impartial.

The judge court questioned the other jurors, who all testified that they could be fair and impartial. Defendant moved for a mistrial. The judge denied the motion, finding that the jury had not been tainted and could continue with the case.

Where, as here, there is a claim of jury intrusion by irregular influences, the trial judge must determine if the jury has been tainted by questioning the jurors in the presence of counsel. State v. R.D., 169 N.J. 551, 558 (2001). The decision to grant a mistrial rests in the sound discretion of the trial court. Id. The trial court's decision will not be reversed unless shown to be an abuse of discretion. Id. at 560.

The PCR court correctly found that there was no evidence that the trial judge abused his discretion by denying defendant's motion for a mistrial. The judge had questioned the jurors in the manner required by R.D. If appellate counsel had raised the issue in the appeal, the result of that proceeding would have been the same. We are therefore convinced that the PCR court correctly determined that defendant was not denied the effective assistance of appellate counsel.

We have considered defendant's other arguments and find them to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A