STATE OF NEW JERSEY v. FRANCIS GANNONE, JR 2013 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3279-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS GANNONE, JR.,

Defendant-Appellant.

__________________________________________________________

November 12, 2013

 

Submitted March 18, 2013 - Decided

Before Judges Graves and Guadagno.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Indictment No.

99-02-0085.

Joseph E. Krakora, Public Defender, attorney

for appellant (Monique Moyse, Designated

Counsel, on the brief).

Geoffrey D. Soriano, Somerset County

Prosecutor, attorney for respondent (James

L. McConnell, Assistant Prosecutor, of

counsel and on the brief).

Appellant filed pro se supplemental briefs.

The opinion of the court was delivered by

GRAVES, J.A.D.

Defendant Francis Gannone, Jr., appeals from an August 24, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a two-week jury trial, defendant was convicted of the purposeful and knowing murder of Valerie Fasanello, his former girlfriend, who he had been living with. Prior to sentencing, defendant filed a motion for a judgment of acquittal or, alternatively, the reversal of his conviction and a new trial. In denying defendant's motion, the trial judge found the following items of evidence were particularly compelling: (1) defendant's "underwear containing the blood of [Ms.] Fasanello was found at the scene"; (2) DNA testing also confirmed that socks found in defendant's duffel bag after he was arrested contained the victim's blood; (3) "defendant fled the scene" and "used false names along the way at motels"; (4) in a telephone conversation with his brother after Valerie was killed, defendant's primary "concern was whether or not the police were going to accuse him" and "how he was going to avoid being found by the police"; (5) after waiving his Miranda1 rights, defendant confessed to police officers that he killed Valerie; and (6) the fact that the victim's residence was locked and there were no signs of a forced entry, suggested the killer "had permission or a right to be there."

At sentencing on July 13, 2001, the trial court found that Valerie was "particularly vulnerable and incapable of resistance because the defendant sneaked up on her and stabbed her while she was sleeping." The court sentenced defendant to life imprisonment with thirty years to be served without parole.

On his direct appeal, defendant presented the following arguments:

POINT I

 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO STRIKE THE "EXPERT" TESTIMONY OF MABEL HORES THAT THE BLOODY HAIRS WERE SIMILAR TO THE VICTIM'S, EVEN THOUGH MS. HORES HERSELF ADMITTED THAT THAT OPINION WAS NOT SUFFICIENTLY RELIABLE TO MEET THE STANDARDS OF HER OFFICE.

 

POINT II

 

THE TRIAL COURT ERRED IN MODIFYING THE MODEL CHARGE ON PASSION-PROVOCATION MANSLAUGHTER IN A WAY WHICH MISSTATED THE NATURE OF THE PROOFS AND IMPLIED THAT THE FACTS DID NOT SUPPORT A VERDICT ON THAT LESSER OFFENSE.

 

Defendant also raised additional issues in a pro se supplemental brief:

POINT I

 

PROSECUTORIAL MISCONDUCT.

 

 

 

POINT II

 

DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND MOTION FOR A NEW TRIAL.

 

POINT III

 

DESTROYED NOTES.

 

POINT IV

 

REACTION TO THE CRIME PHOTOS.

 

We affirmed defendant's conviction, State v. Gannone, No. A-0407-01 (App. Div. Mar. 19, 2004), and the Supreme Court denied certification. 180 N.J. 453 (2004). In that opinion, we noted that defendant and Valerie were romantically involved when they began living together in 1996. Problems developed in their relationship, however, and Valerie began seeing other men even though they were still living together. We also described the events that transpired after defendant confronted Valerie during the early morning hours of Friday, September 4, 1998:

When Valerie returned home . . . on the night in question, defendant confronted her about their relationship. Valerie, after initially ignoring defendant's attempts to talk, "finally said to him while she was laying in bed that their relationship is over; that no matter how much you change, no matter how hard you try, you'll never be good enough for me." At that point, defendant "snapped." As defendant later told the police, he went to the kitchen, "removed a knife from the butcher block knife holder, on the kitchen counter . . . and then [] hesitated in the kitchen for a few seconds." Dressed only in underpants, he returned to the bedroom, again paused holding the knife, then stabbed Valerie in the back while she was sleeping. She awoke and screamed. Because of the amount of blood found on the carpet, the State surmised that Valerie was killed while she was on the carpet at the foot of the bed. Defendant pulled the body onto the bed, then removed his underwear, showered, packed a duffle bag, and left.

 

At approximately 2:40 p.m., the Bound Brook police, responding to an emergency call by Valerie's parents, found Valerie's body in the bedroom of her residence . . . . The police found "a butcher-style knife with a brown handle, silver blade . . . between the doorway and the foot of the bed." The body was found on the bed, with three stab wounds; blood was on the floor and on the bedcovers. . . .

 

The medical examiner observed one stab wound on the chest, one stab wound and two incised wounds on the back, and a stab wound on the arm. . . . The medical examiner opined that the time of death was between 5:00 p.m., September 3, 1998, and 5:00 a.m., September 4, 1998.

 

The investigation led the police to seek defendant, who was found with the help of his brother at a motel in Pennsylvania early on September 6, 1998, and arrested by Pennsylvania authorities. Defendant told police that he and Valerie had argued the night she was killed, but that he could not remember what happened next because he blacked out. . . .

 

After telling the police about blacking out, defendant asked for a cigarette and the police accompanied defendant to an area where he could smoke. While smoking, defendant began to cry and stated, "It's a nightmare, and I wish I could just wake up." Defendant then stated, "I didn't want to kill her. I'm sorry. I just lost it."

 

[Id. at 2-5 (second and third alterations in original).]

 

In our prior opinion, we also noted that a detective from the Somerset County Prosecutor's Office provided additional information regarding defendant's confession. According to the detective, defendant told him: "[Y]ou're not going to find any blood on the clothes because after I stabbed her I only had underwear on. I looked down. There was blood on me. I took the underwear off. I went down the hall, took a shower, put on new clothes, and left."

At trial, defendant testified on his own behalf. He denied he killed Valerie and denied most of the statements attributed to him. Defendant acknowledged he was angry and jealous when he confronted Valerie because he had seen her talking to another man at a bar that night, and she had walked the man home. But defendant testified he packed a duffel bag and left because he is "not a person who likes to fight." When asked what name he used when he stopped at a motel in Pennsylvania, defendant testified:

A. Not mine. I'm not exactly sure of the name that I used at that time. I never use my own name when I go to a [motel] like that. I don't know if any of those [motels] send out some sort of fliers or any kind of brochures, and when I go to get away, I want to be away. I don't want anybody bothering me, or anybody looking for me. I'm away to clear my head. What's the sense of going away to clear your head if somebody's just going to get in contact with you?

 

Q. Were you trying to hide from anyone, is that why you didn't use your name?

 

A. No, sir.

Defendant testified he repeatedly told the police he did not kill Valerie, but the police did not believe him. According to defendant, the police "just kept harping" that he was guilty and he finally said: "[Y]eah, you're right I snapped, I blacked out, I killed Valerie Fasanello, that's what happened. Just so they would leave me alone."

After we affirmed defendant's conviction, he filed a petition for PCR, together with a brief and appendix. Assigned counsel also filed a letter brief. The trial court denied the application for PCR and defendant appealed. In an unreported opinion, State v. Gannone, No. A-1231-07 (App. Div. June 10, 2010), we found that PCR counsel was deficient. Therefore, we reversed the order denying defendant's petition and remanded "for a new PCR hearing at which all claims would be explored." Id. at 6 (internal quotation omitted). We also directed the case to be assigned to a different trial court. Ibid.

On March 25, 2011, new PCR counsel filed a brief alleging that defendant's trial attorney was ineffective. Following oral argument, the PCR court set forth its reasons for denying the application in a written decision on August 24, 2011, and entered an order that same day. The court concluded that defendant was not entitled to an evidentiary hearing because he failed to establish a prima facie claim of ineffective assistance of counsel.

On this appeal, defendant presents the following arguments through counsel:

POINT I

 

MR. GANNONE IS ENTITLED TO A HEARING ON HIS CLAIMS THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PRESENT AN EXPERT TO CHALLENGE THE MEDICAL EXAMINER'S FINDINGS, FAILING TO CROSS-EXAMINE A CRUCIAL WITNESS, FAILING TO PRESENT THREE WITNESSES, AND FAILING TO KEEP HIM INFORMED PRETRIAL.

 

POINT II

 

THE CLAIMS IN MR. GANNONE'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL.

 

In his original petition and his pro se supplemental briefs filed on September 19, 2012 and December 4, 2012, defendant argues we should either reverse his conviction and order a new trial or remand for an evidentiary hearing. According to defendant, a toll receipt from the Delaware River Joint Toll Bridge Commission that was admitted into evidence conclusively proves he was crossing the Delaware River on his way to Pennsylvania at 4:12 a.m. on Friday, September 4, 1998. Therefore, defendant contends the time of death is "the crux of the case," and trial counsel was ineffective for failing to hire a medical expert to testify regarding the time of death. Defendant also argues the toll receipt is exculpatory, and his attorney was ineffective for not filing a motion to dismiss the indictment based on the State's failure to present the toll receipt to the grand jury.

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "First, the defendant must show that counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must show that the deficient performance prejudiced the defense" by demonstrating "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is 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; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, paragraph 10 of the New Jersey Constitution).

Guided by these principles, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm with the following comments.

During the trial when the medical examiner was asked whether he was able to determine the time of Valerie's death, he testified as follows:

At the time of my examination, at five p.m. on September fourth, 1998, the body was in full rigor mortis. Under optimal conditions, which is 70 degrees Fahrenheit temperature and 30 percent humidity, rigor mortis develops over twelve hours, lasts over twelve hours, and declines over twelve hours. The degree of rigor mortis here was full. So it would be, in my estimation, anywhere from twelve to 24 hours before I visited the scene.

 

Thus, the medical examiner estimated that Valerie was killed sometime between 5:00 p.m. on Thursday, September 3, 1998, and 5:00 a.m. on Friday, September 4, 1998. However, on cross-examination, the medical examiner testified there was partially digested food in the digestive system, and he estimated that Valerie "consumed some food approximately six hours before she was killed." In addition, defendant testified that after Valerie returned home "somewhere around" 2:40 a.m. on September 4, 1998, she "started cooking almost immediately," and he saw her eat "[a] bacon, egg and cheese sandwich."

Based on this testimony, defense counsel argued in summation that Valerie was killed when defendant "was in Pennsylvania on his way to Indiana":

The medical examiner testified next. I would suggest, ladies and gentlemen, the medical examiner is my best witness, without a doubt. Because he tells you in no uncertain terms, that full rigor mortis was set in when he got there.

 

[Well then], Doctor, can you give us a time of death? I can't pinpoint it down to a time, but I can tell you it happened between the twelve to 24-hour period this rigor mortis sets in like that. That's what he said on direct.

 

However, remember, because this is critical, remember when [I asked] him on cross-examination, well, Doctor, is there anyway, based upon the digestive system and the autopsy that you conducted, you can tell us certain things about what she ate in relation to when she was killed? Oh, yes, I can. I directed him to his report. Yes, she had food in her stomach that was being digested.

 

Now, I was hoping to be able to show that it was bacon and eggs, to corroborate my client's version of the events. But the medical examiner said no, you know, the digestive process had been so far along that we couldn't do that. And he also said that the digestive process goes on for a little bit after death.

 

But here's what he said that is so very important. Doctor, can you estimate, taking all of that into consideration, what time Valerie ate before she was killed? Yes, he could. She ate six hours before she died. Six hours.

 

Well, she came home from that bar and had that bacon and egg and cheese sandwich at 2:30 [a.m.]. [Defendant] said she did. And as the cops indicated, there [were] still pots and pans that had bacon residue in them. If she ate immediately and was then killed, the digestive process would have stopped. You would have been able to see the bacon and eggs in there. But she wasn't killed right after she ate, she was killed six hours later when he was in Pennsylvania on his way to Indiana.

 

After the jury rejected this argument, the trial judge considered a similar argument in connection with defendant's motion for a judgment of acquittal or a new trial. The judge noted the medical examiner's estimate of the time that passed from the victim's last meal until her death was "proven incorrect by his own testimony" and other evidence in the case. Moreover, the judge concluded the "testimony about the meal" was not "particularly significant" given the "overwhelming wealth of evidence" that defendant killed Valerie at about 3:00 a.m. on September 4, 1998.

In support of his PCR application, defendant submitted a two-page report from a medical expert, which states "rigor mortis (rigidity) and livor mortis (lividity) are much less reliable as predictors of time of death than the body temperature method." Nevertheless, after examining the medical examiner's autopsy report and other information in this case, defendant's medical expert agreed that the post mortem changes were "consistent with [the victim] being killed between the time she was last seen alive by the defendant around 3:00 a.m., and possibly as late as 5:00 a.m." Therefore, the record does not support defendant's claim that his trial attorney was ineffective for failing to hire an expert to determine the time of death.

We have also concluded from our examination of the record that trial counsel was not constitutionally deficient for failing to file a motion to dismiss the indictment; for failing to cross-examine Lieutenant Louis Diana about his trial testimony; and for failing to call three potential witnesses, namely, Ron Whitlock, defendant's former employer, Debra Gannone, defendant's sister, and Laura Palatino, who spoke with defendant at the Underground Bar on the night of Thursday, September 3, 1998. It is clear that any testimony by these individuals would have been cumulative and would not have changed the outcome of the case.

Defendant also argues his trial attorney failed to keep him informed, but there is no evidence to support that claim. In fact, on direct examination, defendant acknowledged that his attorney had thoroughly reviewed the case with him:

Q. I'm going to take you back to September third, 1998, do you remember that day?

 

A. Yes, I do.

 

Q. By the way, have we discussed this before?

A. Yes, we have.

 

Q. We discussed this on a lot of occasions?

 

A. Quite a few.

 

Q. We [went] over all of this material that was here?

 

A. With a fine tooth comb, I'd say.

 

Finally, the court did not abuse its discretion in denying defendant's petition without an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992) ("[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief.). This is not such a case.

Affirmed.

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).