STATE OF NEW JERSEY v. JAMES WANGER

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1390-04T41390-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES WANGER,

Defendant-Appellant.

_______________________________________

 

Submitted January 25, 2006 - Decided

Before Judges Stern and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 92-06-0722-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Wanger appeals from an order entered September 24, 2004 denying his petition for post-conviction relief (PCR). We affirm.

I.

On February 17, 1992, at 12:26 a.m., the body of Robert Solimine, Jr. was discovered in the driver's seat of his car on the property of a public school in Clifton, New Jersey. An autopsy confirmed that Solimine's death was due to "asphyxia by ligature strangulation." Solimine was 17 years old at the time of his death. The investigation led to D.M.S., D.S. and F.C., three juveniles who were Solimine's acquaintances. The three juveniles informed the investigating officers that defendant killed Solimine.

The investigating officers thereafter questioned defendant and he told them that, on the day of the murder, D.M.S. picked him up around 4:00 p.m. and they drove to D.S.'s house, where they met Solimine. According to defendant, they played cards and watched television until about 10:00 p.m., when Solimine left. One of the detectives observed red marks on the skin of defendant's wrists. The detective also observed gouges in defendants hands. The detective did not find marks on the wrists of D.M.S., D.S. or F.C.

Defendant was charged in a juvenile delinquency complaint with murder, aggravated arson and tampering with evidence. The State moved pursuant to N.J.S.A. 2A:4A-26(a)(2) to prosecute defendant as an adult. On April 29, 1992, defendant consented to waiver of Family Part jurisdiction and an order was entered on June 17, 1992 referring the matter to the Passaic County Prosecutor for adult disposition.

On June 25, 1992, a Passaic County grand jury returned an indictment against defendant. Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) and N.J.S.A. 2C:2-6 (count one); second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count two); first-degree attempted murder, N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:2-6 (counts three and four); third-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4d (count five); fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (counts six and nine); third-degree hindering his own apprehension or prosecution, N.J.S.A. 2C:29-3b(1) (counts eight and thirteen); second-degree conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:17-1a(2) (count ten); and second-degree aggravated arson, N.J.S.A. 2C:17-1a(2) (count eleven).

Frank Castaldo also was charged in the indictment. Castaldo was charged along with defendant in counts one through six and counts nine through eleven. Castaldo was charged separately with third-degree hindering his own apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (counts seven and twelve) and fourth-degree false swearing, N.J.S.A. 2C:28-2 (count fourteen).

At trial, the State presented evidence which established that, sometime in 1991, defendant, Castaldo, D.M.S., D.S. and F.C. would often "hang out together" and on occasion, Solimine would join them. D.S. testified that Solimine was a "tag along" and the members of the group would try to "get rid of him, tell him to leave." D.S. said that Solimine was "always around when we didn't want him to be." Solimine, he said, "wasn't one of us. He could never be one of us. It was just something that everybody knew from the beginning." According to D.S., the group talked about "doing things" to Solimine's car "to stop him from coming down."

D.S. testified that the group tried to damage Solimine's car but he kept "getting away." D.S. said that, "He'd slip out of it somehow." When the attempts to damage Solimine's property failed, Castaldo became more and more angry. Defendant also became incensed that they had been unable to damage Solimine's car. D.S. testified that the group was at Romeo's Pizzeria in Passaic and there defendant said for the first time that they should kill Solimine. D.S. asserted that he thought defendant was joking but Castaldo "liked the idea."

The group planned to insert an aerosol can into the pipe to the gas tank in Solimine's car. They believed that the heat of the car would cause the can to explode and Solimine's car would blow up while he was driving it. The group took steps to implement this scheme. While Castaldo, D.M.S. and D.S. waited outside, defendant and F.C. went into a supermarket and F.C. stole an aerosol can of deodorant. Late in the afternoon on January 25, 1992, the group found Solimine's car outside of his mother's house. They tried to pry open the cap to the gas tank but they were unable to do so. According to D.S., Castaldo was furious and he started pounding on the dashboard in the car. D.S. said that defendant also was upset when this attempt to kill Solimine failed.

The group continued making plans to murder Solimine. They next hatched the idea of handcuffing Solimine to the steering wheel of his car. They planned to ignite a rag doused with lighter fluid and insert the burning rag in the gas filler pipe, causing the car to explode with Solimine bound inside. In the early morning hours of February 16, 1997, defendant, D.M.S., D.S. and F.C. attempted to carry out this plan.

Defendant and his cohorts met Solimine. F.C. brought the handcuffs, a lighter, lighter fluid and a rag. Defendant took the handcuffs. Defendant and F.C. were with Solimine in Solimine's car and D.S. was riding with D.M.S. in his car. Solimine stopped at a gas station and defendant purchased the gasoline to fill Solimine's tank.

The group drove in the two cars to Brookdale Park, proceeded to a parking lot near some factories and later stopped at School 15. In the park, F.C. was able to open the cover to the gas cap in Solimine's car and he disconnected the horn. Defendant tried to talk Solimine into allowing himself to be handcuffed to his steering wheel but he refused. In the parking lot at the school, defendant again tried to talk Solimine into being handcuffed to his steering wheel but he refused.

Eventually, D.S. and F.C. left in D.M.S.'s car and defendant drove away with Solimine. Sometime later, they met at a donut shop. There, defendant asked D.S. for his shoelaces. Defendant told D.S. that he was going to use the shoelaces to kill Solimine in his car at a red light. D.S. took off his shoelaces and gave them to defendant. Defendant got into the car with Solimine and left. They stopped at a red light but, according to D.S., "nothing happened."

Defendant, D.M.S., D.S. and F.C. met later in the day on February 16, 1992 at Castaldo's house. Defendant told Castaldo how their latest plan to kill Solimine had gone awry. D.M.S. testified that Castaldo said to "forget it" but defendant was insistent and said that he was "definitely" going to kill Solimine that night. According to D.M.S., Castaldo told defendant, "[I]f you don't do it tonight then you're not going to do it at all."

F.C. testified that defendant obtained an extension cord from Castaldo's younger brother. D.M.S. called Solimine and left a message asking Solimine to meet the group. Solimine arrived at D.S.'s house around 7:00 p.m.

At about 9:00 p.m., D.M.S. drove defendant to a convenience store while Solimine, F.C. and D.S. waited at D.S.'s house. Defendant purchased some items, including two packages of shoelaces. Defendant had the extension cord in his coat pocket. D.M.S. testified that they drove to the parking lot at Clifton High School. Defendant tied the shoelaces to the ends of the cord. Defendant told D.M.S. that the shoelaces would give him a "better grip."

D.M.S. drove defendant back to D.S.'s house. At around 10:00 p.m., defendant, D.M.S., D.S. and Solimine picked up F.C. Solimine was driving his car with defendant and F.C. as passengers, while D.M.S. was driving with D.S. in the other car. They drove to the parking lot at School 15.

F.C. testified that he was in the front passenger seat of Solimine's car and defendant was sitting directly behind Solimine. D.M.S. was parked near the street. The plan was to kill Solimine and then blow up his car. F.C. testified that defendant said to him, "adesso." F.C. did not "know what it meant at the time" but at trial understood that it was an Italian word that means "now". Defendant repeated "adesso." F.C. said that the tone of defendant's voice was "a little bit harsher." F.C. asserted that he knew defendant did not "want no as the answer" so he said, "Yes."

According to F.C., defendant stated that they should be quiet and listen to the sounds. Solimine said it was a "stupid" and "ridiculous" idea. F.C. assumed that defendant was stalling. Solimine wanted to leave but defendant said that they should first say a prayer. Solimine balked but defendant insisted and Solimine finally agreed. They began to recite the Hail Mary. When they reached the line, "Pray for us sinners," F.C. felt Solimine's hat hit him on the leg. F.C. saw that defendant had the electrical cord across Solimine's neck and he was pulling on it. Solimine struggled and kicked to free himself.

D.M.S. testified that he approached the car and saw defendant strangling Solimine with the electrical cord. Defendant had his feet up against the rear of the driver's seat and he was pulling on the cord with "all his forces." F.C. was seated in the passenger seat, telling defendant to stop but defendant refused. Defendant told D.M.S. to get a baseball bat from the car and hit Solimine with it but D.M.S. refused.

F.C. testified that Solimine's movements started to slow and then stopped. F.C. came around to the driver's side of the vehicle and checked Solimine's pulse. F.C. also checked for a heartbeat and to see if he was breathing. Solimine was dead. At this point, defendant stopped pulling on the cord.

Defendant got out of the car and put the rag into the gas pipe of Solimine's car. F.C. stated that the cord was still around Solimine's neck. F.C. took the cord off and slid it across the hood of the car. Defendant put the cord in his pocket. F.C. removed the car keys. F.C. lit the rag that was sticking out of the gas pipe.

F.C. and defendant ran into the park, expecting D.M.S.'s car to be there but it was not. F.C. said that he and defendant kept on running and they went to F.C.'s home, where they arrived shortly before midnight. According to F.C., defendant was screaming, "[W]e finally got him." F.C. told defendant to "shut up" and defendant calmed down.

D.M.S. and D.S. arrived and defendant again became agitated. According to F.C., defendant was screaming, "[W]e finally got him, yes, yes, we finally got him, he's finally dead." Defendant said that they should celebrate but the others were too shaken. F.C. testified that he got a glimpse of the electrical cord that defendant used to kill Solimine. They put the cord and the gas cap in a small bag. They also discussed what they would say if questioned by the police. They agreed that they would tell the police that they had not seen Solimine since 10:00 p.m.

Defendant went with F.C., D.M.S. and D.S. to Castaldo's house. They brought along the bag containing the electrical cord and the gas cap. They told Castaldo that Solimine was dead. According to F.C., Castaldo lit a cigarette and "[h]e had kind of a smirk." F.C. gave Castaldo the keys to Solimine's car. F.C. testified that the keys "were supposed to go in the Passaic River." He did not know what would be done with the cord and the gas cap.

Defendant testified that on the evening on February 16, 1992, Solimine left D.S.'s house and defendant went riding with D.S., F.C. and D.M.S. They went to a park near School 15 after 10:00 p.m. The others said they were going to drink and defendant asked for a ride home. F.C. got angry that defendant would not drink with them and D.M.S. said he did not have enough time to drive defendant home. Defendant initially planned to meet the others later at F.C.'s house. Defendant said that he changed his mind and started walking home but then decided to go to F.C.'s house and wait for the others. He said he was walking about 20 or 25 minutes. Defendant testified that he waited outside F.C.'s house about ten or fifteen minutes when D.M.S. drove up. F.C. got out of the car and D.S. and D.M.S. drove off. Defendant said that he went with F.C. into the house.

On cross-examination, defendant was questioned on his time line. The prosecutor pointed out that defendant said he entered F.C.'s house about 10:40 p.m., whereas F.C.'s father said they arrived between 11:30 and midnight. Defendant was asked where he was for that "missing hour." Defendant replied, "I must have got the times mixed up then." Defendant denied that he was at School 15 during that hour. Defendant said that he must have "messed up" on the time.

Defendant additionally testified that he had no knowledge of any attempts to kill Solimine or his actual murder. He said that he tried to protect Solimine. Defendant testified that he borrowed an extension cord for D.S. He admitted buying the shoelaces although he said that he bought them for D.S. Defendant also admitted that the first word on the list of Italian words that he wrote on a card found in his wallet was "adesso."

The jury found defendant guilty on all counts. Defendant appeared for sentencing on November 19, 1993. The judge merged certain counts. The judge sentenced defendant to life imprisonment with a 30-year period of parole ineligibility on count one (murder). The judge sentenced defendant to a consecutive 18-year term, with a 4-year period of parole ineligibility, on count three (attempted murder). The judge imposed a consecutive 18-year term, with a 6-year period of parole ineligibility on count four (attempted murder). In addition, the judge sentenced defendant to a concurrent 5-year term on count eight (hindering apprehension), and a concurrent 8-year term on count eleven (aggravated arson). Defendant's aggregate sentence is life imprisonment, plus 36 years, with a 40-year period of parole ineligibility. The final judgment of conviction was entered on November 19, 1993.

Defendant appealed and argued that the trial judge erred by: 1) excusing a juror prior to closing arguments of counsel; 2) allowing the admission of the contents of defendant's wallet into evidence; 3) refusing to charge the jury on the lesser included offense of aggravated manslaughter; 4) charging the jury on alternative theories of murder; 5) and imposing an excessive sentence. We filed an opinion on March 17, 1995 and affirmed the convictions and sentences. State v. Wanger, No. A-2122-93T3 (App. Div. March 17, 1995). Defendant petitioned the Supreme Court for certification. The Supreme Court denied the petition on February 5, 1997. State v. Wanger, 148 N.J. 434 (1997).

II.

On September 9, 1997, defendant filed a pro se petition for PCR. Defendant asserted in his petition that he was unable to prepare a memorandum of law because he did not have a complete copy of his trial transcripts. Defendant identified "tentative issues that should be raised." These were the ineffective assistance of trial counsel and prosecutorial misconduct.

In his pro se petition, defendant stated that he had been denied the effective assistance of counsel because his attorney: 1) failed to "challenge" waiver to adult court; 2) never "sought a motion" to suppress the testimony of D.S., D.M.S. and F.C.; 3) failed to present an effective brief in the appeal; 4) failed to furnish copies of certain documents so that he could present a timely petition for certification to the Supreme Court, which he was forced to file nunc pro tunc; and 5) compromised the PCR petition by failing to provide a complete set of the trial transcripts.

In a letter dated September 25, 2001, the first PCR counsel advised the judge that he had explained to his client that he would only be arguing "sentencing issues" at the hearing. PCR counsel stated that he planned to call an expert to testify on the standards in Passaic County of effective assistance of counsel at the trial and appellate levels. Simultaneously, PCR counsel sought leave to amend the petition by adding a claim related to the ineffective assistance of trial and appellate counsel. The proposed amendment stated:

9. [Defendant] was deprived of his right to the effective assistance of trial and appellate counsel under the Sixth Amendment to the United States Constitution and Article one, paragraph 9, 10 of the New Jersey Constitution of 1947 as both trial and appellate counsel failed to raise the points and issues enumerated in his brief filed simultaneously herewith and hereby incorporated.

10. Had the issues been raised in either the Appellate Division or the Supreme Court, [defendant] would not have received consecutive sentences and[/]or the court would have remanded for institution of a proper and legal sentence.

The matter came before the court for a hearing on September 27, 2001. PCR counsel withdrew the claim of prosecutorial misconduct that defendant had adverted to in his petition. PCR counsel stated that, having reviewed "a package of materials," he had determined that, "with one exception, that there were no issues that he could" in good conscience "present to the court relating to overturning the verdict." Counsel asserted that there was only one issue of merit and that related to the imposition of consecutive sentences. The judge denied the petition and defendant appealed.

The Public Defender filed a motion in the Appellate Division for summary reversal of the order denying PCR relief. We denied that motion by order filed April 17, 2003. Defendant thereafter filed a supplemental pro se brief and reply brief dated July 7, 2003, in which he argued, among other points, that he was denied his right to a public trial by the "exclusion of his grandparents during jury selection." Defendant noted that this issue had not been raised in the PCR court.

In our opinion on the appeal, we explained that under State v. Rue, 175 N.J. 1 (2002), PCR counsel has an obligation "to advocate the points raised by defendant in the petition, or at least could not indicate that they had no merit." State v. Wanger, No. A-1474-02T4 (App. Div. November 20, 2003)(slip. op. at 7). Because counsel had not fulfilled his obligation under Rue, we reversed the denial of the petition and remanded for further proceedings. Id. at 8.

On remand, the Public Defender assigned new counsel to represent defendant. The second PCR counsel advanced the following contentions on defendant's behalf: 1) defendant's claims are not barred by R. 3:22 because they are constitutional issues arising under the State and Federal Constitutions; 2) the State used improper interrogation techniques when questioning D.M.S. to obtain inculpatory statements that were used against defendant; 3) defendant was denied his right to a fair and public trial under the Sixth Amendment because the jury selection process was closed to defendant's family and the general public; and 4) the sentences for murder and attempted murder and the imposition of consecutive sentences contravene the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

In support of his petition, defendant submitted affidavits from his maternal grandparents, Paul J. Colombo and Martha J. Colombo. They asserted that defendant lived with them for his whole adolescent life. Paul asserted that he and Martha

arrived at the courthouse for the trial to begin. Before picking a jury, we were asked to leave the courtroom. The courtroom was emptied out, and we were in the hallway the rest of that day and the following day. We waited outside in the hallway with the reporters, the family of the victim, and the spectators. We at no time spoke to or had any communications with the families of the victim[], the reporters or the spectators. We were allowed back into the courtroom on the third day, and the jury selection was almost complete.

Martha made essentially the same statements in her affidavit. Paul added that he and his wife "were the only family members of [defendant] to attend the court proceedings and we were not permitted to remain in the courtroom during jury selection."

Steven Insley, an attorney in the Public Defender's Office in Passaic County, submitted an affidavit in which he stated that it has been his experience and "a matter of common knowledge, that during the jury selection process in criminal trials in Passaic County, the Sheriff's Officers would ask anyone other than members of the jury pool, and the attorneys and defendant(s) to leave the courtroom due to lack of space."

In its brief to the PCR court, the State argued that defendant had not presented a prima facie case for PCR relief and therefore his request for an evidentiary hearing should be denied. The State refuted defendant's claims that he had been denied the effective assistance of counsel due to: the alleged improper interrogation of his juvenile co-defendants; the failure to object to the purported "closure" of the courtroom during jury selection; the failure to "prevent" waiver to adult court; the alleged inadequate investigation; the failure to call certain witnesses; the delay in providing certain paperwork; and the alleged prosecutorial misconduct. The State also argued that defendant's sentences are not excessive and had been constitutionally imposed.

The judge heard oral argument on the petition on September 24, 2004. At the hearing, the judge noted that defendant had submitted a certification in which he stated that he was asserting all of the points raised in his pro se application and the four additional points raised by PCR counsel. The judge told PCR counsel that he would hear him on the grounds cited in the pro se application. Counsel stated that defendant's submissions spoke for themselves.

Counsel then argued that trial counsel had been constitutionally deficient because he failed to seek the suppression of testimony of defendant's juvenile co-defendants and because he failed to object to the alleged "closure" of the courtroom during jury selection. Counsel also argued that the his sentences violated the principles set forth in Apprendi and Blakely. The judge found no merit in these contentions and set forth his reasons on the record. An order was entered on September 24, 2004 denying PCR relief and this appeal followed.

Defendant argues that we should remand the matter again for re-argument and reconsideration of defendant's petition. The following are the point headings taken almost verbatim from the brief submitted by the Public Defender on behalf of defendant. The Public Defender reiterated contentions raised by defendant in his submissions to the trial court.

LEGAL ARGUMENT: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS SECOND PETITION FOR POST-CONVICTION RELIEF

GROUND I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. FAILURE TO INVESTIGATE

1. FAILURE TO CALL WITNESSES

B. NEVER TRIED TO CHALLENGE [DEFENDANT'S] WAIVER INTO ADULT COURT

C. NEVER SOUGHT A MOTION TO SUPPRESS THE TESTIMONIES OF D.M.S., D.S. AND F.C.

GROUND II. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

A. SUBMITTED AN INEFFECTIVE BRIEF TO THE APPELLATE DIVISION ON [DEFENDANT'S] BEHALF

1. THE APPELLATE JUDGES CITED RULE 2:11-3(e)(2) WHICH STATES, IN PART, THAT NO WRITTEN OPINION IN REQUIRED WHEN "SOME OR ALL OF THE ARGUMENTS MADE ARE WITHOUT MERIT AND DO NOT WARRANT DISCUSSION IN A WRITTEN OPINION"

B. SLOWED [THE] APPEAL TO THE STATE SUPREME COURT

1. WHEN [DEFENDANT] COULD NO LONGER AFFORD PRIVATE REPRESENTATION, COUNSEL WOULD NOT PROVIDE [DEFENDANT] WITH THE FOLLOWING PRE-PAID MATERIALS

a. [DEFENDANT'S] COMPLETE APPELLATE BRIEF

b. THE STATE'S OPPOSING BRIEF

c. THE WRITTEN OPINION OF THE APPELLATE JUDGES

(1) AS A RESULT, [DEFENDANT] PETITIONED THE STATE SUPREME COURT NUNC PRO TUNC

(2) [DEFENDANT] EVENTUALLY OBTAINED THE BRIEFS THROUGH THE APPELLATE SECTION OF THE PUBLIC DEFENDER

C. COMPROMISED THIS [PETITION FOR] POST CONVICTION [RELIEF]

1. FORMER COUNSEL WOULD NOT PROVIDE [DEFENDANT] WITH [A] PRE-PAID SET OF TRANSCRIPTS, DISREGARDING THREE DIFFERENT LETTERS

2. THE PUBLIC DEFENDER'S OFFICE COULD NOT PROVIDE ASSIGNED COUNSEL FOR [DEFENDANT] FOR POST CONVICTION [RELIEF] WITHOUT KNOWING WHAT GROUNDS [DEFENDANT] WOULD RAISE

3. WITHOUT THE COMPLETE TRANSCRIPTS IT WAS DIFFICULT TO DETERMINE WHAT GROUND[S] [DEFENDANT] WOULD RAISE

GROUND III. [DEFENDANT] CLAIMS HE WAS DENIED EQUAL PROTECTION UNDER THE LAW, DUE PROCESS OF LAW AND FUNDAMENTAL FAIRNESS AS GUARANTEED BY THE 5TH, 6TH AND 14TH AMENDMENTS TO BOTH THE STATE AND UNITED STATES CONSTITUTIONS. [DEFENDANT] STATES THAT HE IS UNABLE TO PREPARE A MEMORANDUM OF LAW BECAUSE DOES NOT HAVE A COMPLETE COPY OF HIS TRIAL TRANSCRIPTS. TENTATIVE ISSUES TO BE RAISED ARE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PROSECUTORIAL MISCONDUCT

GROUND IV. THE DECISION TO IMPOSE A SENTENCE ABOVE THE PRESUMPTIVE FOR THE ATTEMPTED MURDER OFFENSES CONSECUTIVE TO A SENTENCE FOR MURDER ABOVE THE ORDINARY TERM WERE BASED ON FACTS NOT DECIDED UPON BY THE JURY AND ARE THEREFORE CONSTITUTIONALLY INVALID

GROUND V. SINCE PCR COUNSEL CONDUCTED NO PERSONAL CONFERENCES WITH DEFENDANT AND SINCE THERE IS NO PROCEDURE FOR AMENDING THE PCR PETITION "AT THIS POINT," THE FOLLOWING ISSUES ARE "ADDED" IN SUPPORT OF THE REMAND

A. DEFENDANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE COURT'S IMPROPERLY CHARGING THE JURY THAT THE DEFENDANT COULD BE FOUND GUILTY ON A THEORY OF ACCOMPLICE LIABILITY FOR ACTS COMMITTED BY ANYONE OTHER THAN FRANK CASTALDO AS THE ONLY CODEFENDANT NAMED IN THOSE COUNTS

B. JUROR PRELLA SHOULD HAVE BEEN EXUSED EITHER FOR CAUSE OR UPON COUNSEL'S EXERCISE OF A PEREMPTORY CHALLENGE BECAUSE OF HER FAMILY RELATIONSHIP WITH A POTENTIAL WITNESS WHO HAD A SIGNIFICANT ROLE IN THE INVESTIGATION OF THE CASE, ALL OF WHICH RAISES THE SPECTER OF PROSECUTORIAL MISCONDUCT

We have considered these contentions and thoroughly reviewed the record before us on appeal. We are convinced that there is no merit in defendant's arguments and, for the reasons that follow, we affirm the order denying PCR.

III.

Defendant first argues that he was denied the effective assistance of counsel in the remand proceedings. We disagree.

In Rue, the Supreme Court noted that a PCR petition allows a defendant "to challenge the legality of a sentence or final judgment of conviction by presenting arguments that could not have been raised on direct appeal." Rue, supra, 175 N.J. at 13 (citing State v. Afanador, 151 N.J. 41, 49 (1997)). Because of the "overarching importance of providing defendants a final opportunity to raise constitutional errors," every defendant is entitled to be represented by counsel, and if the defendant cannot afford counsel, one will be assigned. Ibid. Counsel may not withdraw because of a perceived "lack of merit" in the petition and counsel "should advance any grounds insisted on by defendant notwithstanding that counsel deems them without merit." Ibid. (quoting from R. 3:22-6).

In Rue, the Court held that the defendant had not been afforded the sort of representation "guaranteed" by the PCR rule. Id. at 19. The Court noted that defendant's counsel had "abandoned any notion of partisan representation by countering every one of [defendant's] claims and characterizing the entire petition as meritless." Ibid.

For essentially the same reasons, we reversed the earlier denial of PCR relief in this case because defendant's counsel effectively conveyed to the PCR court that there was no merit in any of defendant's claims other than his claim regarding the validity of his sentences. Wanger, supra, (App. Div. November 20, 2003)(slip. op. at 7-8).

We are convinced, however, that defendant was not denied the effective assistance of counsel at the remand hearing. We recognize that counsel elected to argue only three points before the PCR court. However, the record makes plain that the issues that defendant raised in his initial pro se petition were also before the court. Defendant's attorney never advised the judge that those claims had been withdrawn, nor did he assert that the claims were in any way meritless. Nothing in Rue requires that PCR counsel specifically address on the record each and every basis claimed for PCR relief.

We therefore reject as entirely without merit the contention that counsel's representation of defendant at the remand hearing was deficient.

IV.

We turn to defendant's assertion that he was denied the effective assistance of counsel at trial because his attorney failed to properly investigate; failed to call certain witnesses; failed to seek suppression of the testimony of defendant's juvenile co-defendants; and failed to "challenge" the waiver to adult court. Again, we disagree.

Trial courts ordinarily should grant an evidentiary hearing to resolve a claim based on the ineffective assistance of counsel "if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case of ineffective assistance, a defendant must demonstrate a reasonable likelihood of success on the test established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Preciose, supra, 129 N.J. at 463. Under the Strickland test, the defendant must show that his counsel was deficient and counsel's deficient performance prejudiced his defense. Fritz, supra, 105 N.J. at 52 (quoting from Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "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." Ibid.

To establish that his attorney was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In assessing whether counsel was deficient in his representation of a defendant, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990) (quoting from Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). In addition, to establish that defendant was prejudiced by the deficient performance of his attorney, 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." Fritz, supra, 105 N.J. at 52 (quoting from Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We reject defendant's assertion that his trial counsel was deficient because he failed to present witnesses to testify as to his character. We previously summarized the testimony presented at trial by D.S., F.C. and D.M.S. Those witnesses testified that defendant participated in two attempts to murder Solimine. These witnesses also testified that on the night of February 16, 1992, defendant strangled Solimine with an electrical cord while Solimine was seated in the driver's seat of his car.

Defendant's counsel challenged the credibility of these witnesses by cross-examination. The cross-examination of D.S., D.M.S. and F.C. was thorough and defendant does not claim otherwise. Counsel's decision to employ cross-examination as a means to challenge the testimony of these witnesses, and his decision not to call witnesses to testify as to defendant's character were reasonable trial strategies. Indeed, cross-examination has been described as the "greatest legal engine ever invented for the discovery of truth." State v. Branch, 182 N.J. 338, 348 (2005) (quoting from California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970)).

Moreover, even if counsel's strategic choice was erroneous, defendant was not prejudiced by counsel's action. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Testimony as to defendant's character would not have led to a different assessment of defendant's credibility, particularly in view of the overwhelming evidence of defendant's guilt and his contradictory testimony, which failed to account for his whereabouts at the time Solimine was murdered.

We are likewise unconvinced that defendant was denied the effective assistance of trial counsel because his attorney did not seek to suppress of the testimony of D.S., D.M.S. and F.C. Defendant suggests that the trial testimony was the result of improper questioning by the police.

Wholly aside from defendant's lack of standing to challenge the manner in which these three witnesses were interrogated, there is no evidence whatsoever to support this claim. These three witnesses have not provided any affidavits or certifications concerning the manner in which they were questioned. There is no competent evidence to show that their testimony was in any way coerced. There is no basis for any claim that the testimony was perjured or fraudulent. Defendant has not established any factual basis upon which trial counsel could have validly sought to suppress the testimony of these eyewitnesses to defendant's crimes.

In support of this contention, defendant relies upon excerpts from a book written about this case by Frederick Kunkle called Pray for Us Sinners - The Hail Mary Murder (1996 Time Warner Books). In his book, Kunkle asserts that the investigating officers used improper interrogation techniques when questioning D.M.S. However, Kunkle frankly concedes that he took liberties with the facts when dramatizing certain scenes in order "to create a narrative that flows with the story, opting for simplicity in conveying many points of view." He states that the memories of "many people" varied as to "details, times, settings and conversations...." If two stories diverged, Kunkle "chose a version that seemed most likely" and "freely transposed and edited conversations that people reported years after the fact."

We are convinced that the judge correctly found that the statements in Kunkle's book were not competent evidence. See State v. Marshall, 148 N.J. 89, 203 (1997)(holding that defendant's PCR petition was "insufficiently substantiated" where it was based on a book written about the crime). The statements in Kunkle's book are hearsay. There is no exception to the hearsay rule that would allow such statements to be considered as evidence. Kunkle admits that he made free use of the factual record, thus rendering the statements in the book of questionable reliability. Wholly aside from whether the statements in the book are or are not accurate, no evidence was submitted to the PCR court indicating that the witnesses' statements were inaccurate or untrustworthy.

We also find no merit in defendant's contention that he was denied the effective assistance of counsel because his trial attorney failed to "challenge" the waiver of jurisdiction of the family court. Wanger was over 14 years of age when he was charged with murder. If there is probable cause to believe the juvenile committed the offense, the family court is required to waive jurisdiction. N.J.S.A. 2A:4A-26(a)(1) and (2). Indeed, there is a presumption for waiver of family court jurisdiction in these circumstances. State v. Scott, 141 N.J. 457, 463 (1995). The presumption may be overcome by a demonstration of the probability of rehabilitation by the age of 19 and a showing that such probability "substantially outweighs the reasons for waiver." N.J.S.A. 2A:4A-26(a)(3)(e). The statute requires a balancing of "the need for deterrence against the prospects for rehabilitation." Scott, supra, 141 N.J. at 464 (quoting from State in the Interest of C.A.H. & B.A.R., 89 N.J. 326, 344 (1982)).

Here, the order waiving family court jurisdiction includes an explicit concession by defendant that he was "unable to present favorable evidence on the issue of" his "amenability to rehabilitation." The order also expressly states that defendant has not "shown that the probability of his rehabilitation substantially outweighs the reasons for waiver." Defendant has not shown how his attorney could "challenge" waiver to adult court where, as here, defendant conceded that there was insufficient evidence to support a claim of the probability of rehabilitation. The claim is without merit.

We are therefore convinced that defendant did not establish a prima facie case for relief based on these claims of effective assistance of counsel. The judge did not abuse his discretion by refusing to conduct an evidentiary hearing on these contentions and properly denied relief.

V.

Defendant next contends that he was denied the effective assistance of counsel because his trial attorney failed to object to the purported "closure" of the courtroom during jury selection.

We note initially that defendant did not raise this contention until the filing on July 7, 2003 of his supplemental pro se brief in support of his earlier appeal from the denial of PCR. Claims for PCR must be filed within five years of the date of the judgment of conviction. R. 3:22-12; State v. Milne, 178 N.J. 486, 491-92 (2004). The court may relax the time bar if the delay is due to excusable neglect or an injustice may result. Id. at 492. Defendant has not explained why he waited almost ten years after the entry of his judgment of conviction on November 19, 1993 to raise this issue. Therefore, defendant has provided no basis whatsoever for the court to relax the time bar in R. 3:22-12.

We nevertheless are convinced that there is no merit in this claim. The PCR judge was the same judge who presided at defendant's criminal trial. The judge made clear in his decision on the record in the remand hearing that during jury selection he never ordered the courtroom closed to the public.

The trial judge noted that when the jury was being selected, most of the seats in the courtroom were required for the large panel of prospective jurors. Although the Colombos assert in their certifications that they were told to leave the courtroom during jury selection, the Colombos do not state that the judge instructed them to leave or someone told them to leave at the judge's direction.

In addition, the judge correctly noted that the trial transcript does not reflect that defendant's grandparents made a request for seats in the courtroom during jury selection. The

Colombos were on the list of witnesses and the witnesses had been sequestered. The judge added:

And I know this, that if they . . . wanted to be in the courtroom, they certainly would have been allowed to be in the courtroom because, in fact, that is what happened. Even though they were genuinely witnesses to significant aspects of this case, they were allowed in the courtroom. And it must have been because at that point, someone asked if they'd be allowed in the courtroom, and it was permitted. And it was only during the part of the testimony, I believe with one witness who was directly involved with them that they were asked not to be in the courtroom.

The judge further noted that the proceedings were being televised at the time.

The judge also gave no weight to Insley's statements. He questioned whether Insley was sufficiently familiar with his trial procedures. According to the judge, Insley apparently has not been in his court "in many, many years." The judge stated that it is his "common practice" to make arrangements for family members to be in court during jury selection if they request seats. The judge stated:

We have a pew assigned to them. We give them specific instructions as to the fact that they can't comment to one another at all [because] there are jurors right in the pew in front of them. An officer is stationed at the back of the courtroom to surveil that kind of situation to be sure there is . . . compliance.

The judge's finding that he did not order the courtroom closed to the public during jury selection is amply supported by the record. There is also support in the record for the judge's finding that his "common practice" is to make seats available for family members during jury selection if they make a request to be seated. The findings of fact by the judge are binding on appeal where, as in this case, those findings are supported by adequate, substantial and credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

In support of his claim, defendant again relies on statements in Pray for Us Sinners - The Hail Mary Murder. Defendant points to the following except from the book:

Martha and Paul Colombo, [defendant's] grandparents, sat in the rear of the courtroom. During jury selection, when the courtroom was so filled with potential jurors that only the lawyers and defendant were allowed in, the Colombos sat on a bench down the hall, outside the courtroom. A reporter from the New York Post sat beside them, while the camera crews were taping down wires, setting up monitors, and outdoing each other with blas patter about chasing the big news. Two sketch artists sat in the front row, their easels sticking out of the forest of tripods holding still and video cameras, and scribbled likenesses of the participants. (The judge had ordered them to sketch the juveniles so that their faces could be obscured).

However, as we stated previously, the statements in this book cannot be considered competent evidence. In any event, the statements in the book do not support the allegation that the judge ordered the courtroom closed to the public during jury selection.

Defendant also relies upon our decision in State v. Cuccio, 350 N.J. Super. 248 (App. Div.), certif. denied, 174 N.J. 43 (2002). In that case, we considered whether defendant's right to a public trial under the Sixth Amendment was violated when all members of the public, including defendant's family, were excluded from the courtroom during jury selection. Id. at 265. The trial judge closed the proceedings to members of the public because he wished to avoid contact between the spectators and the potential jurors and because there was no room in the courtroom for spectators. Ibid. We stated that closure of a courtroom during a criminal trial may be permitted but it "must advance an overriding interest that is likely to be prejudiced." Id. at 260 (quoting from Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d 31, 39 (1984)).

We concluded in Cuccio that the defendant's Sixth Amendment rights had been violated because, although maintaining the impartiality of the jury is an "overriding interest," there was no evidence that the partiality of the jury was "likely to be prejudiced." Id. at 265. We further determined a new trial was required because a "defendant is not required to prove specific prejudice in order to obtain relief for a violation of his or her Sixth Amendment public trial guarantee." Id. at 261 (citing Waller, supra, 467 U.S. at 49-50, 104 S. Ct. at 2217, 81 L. Ed. 2d at 40).

In ruling on defendant's PCR petition, the judge properly distinguished the circumstances presented in this case from those in Cuccio. The judge noted that in this matter, he never ordered the closing of the courtroom to members of the public during jury selection. Furthermore, the judge made clear that, had the Colombos requested seats in the courtroom, he would have made an effort to accommodate their request. It is undisputed that the Colombos made no such application.

We therefore are satisfied that defendant has not presented sufficient evidence to establish a prima facie case of ineffective assistance because his trial attorney did not object to the apparent inability of the Colombos to find seats in the courtroom during jury selection. We are not convinced that the fact that the Colombos sat in the hallway during jury selection rises to the level of a Sixth Amendment violation where, as here, there is no evidence that the judge ordered closure of the courtroom to the public and would have provided the family members seating if they had made a request for seats. Moreover, defendant has not suggested that the failure of his grandparents to obtain seats in the courtroom during jury selection could have had an effect on the selection of the jury or the result of the trial. In the circumstances, there was no violation of defendant's right to a public trial under the Sixth Amendment, and his counsel's failure to raise the point at trial is not evidence of the ineffective assistance of counsel.

VI.

Defendant additionally contends that the sentences imposed on his attempted murder convictions violate the Sixth Amendment as interpreted in Apprendi, supra, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435, and Blakely, supra, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403. Defendant was sentenced to consecutive 18-year terms on both count three and count four (which both charge attempted murder). Defendant contends that the sentences were in contravention of his right to trial by jury because the sentences were imposed based on judicial fact-finding rather than findings by a jury.

In State v. Natale, 184 N.J. 458 (2005), our Supreme Court applied Apprendi and Blakely and held that New Jersey's system of presumptive-term sentencing violates the Sixth Amendment's right to trial by jury. Id. at 484. The Court invalidated the presumptive terms under the Code, thereby making the top of the statutory range for the crime charged the "statutory maximum" authorized by the jury verdict or the facts admitted by defendant at his guilty plea. Id. at 487.

The Court in Natale ordered new sentencing hearings "in each affected case," at which the trial court must determine whether "the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96. However, the Court adopted a rule of limited retroactivity and applied its holding only to defendants with cases on direct appeal as of the date of the decision or defendants who raised Blakeley claims at trial or on direct appeal. Id. at 494.

Defendant's direct appeal was not in the "pipeline" on August 2, 2005 when the Supreme Court decided Natale. Ibid. His direct appeal was resolved in 1997 when the Supreme Court denied certification. Wanger, supra, 148 N.J. 434. Moreover, the Court held in State v. Abdullah, 184 N.J. 497, 512 (2005), that imposition of a consecutive sentence does not require fact finding by a jury. Thus, under Natale and Abdullah, defendant is not entitled to any relief in respect of the sentences imposed on counts three and four.

VII.

We have considered the other contentions raised by defendant. We find the assertions not to be of sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

D.M.S., D.S. and F.C. pled guilty in family court to murder and received 20-year sentences. D.M.S. testified that for his cooperation he expects to serve 15 years. F.C. and D.S. expect to serve 12 years.

(continued)

(continued)

37

A-1390-04T4

March 9, 2006

 


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