STATE OF NEW JERSEY v. THOMAS J. KOSKOVICH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6010-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS J. KOSKOVICH,

Defendant-Appellant.

________________________________________________________________

December 8, 2009

Submitted November 30, 2009 - Decided

Before Judges Lisa, Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment Nos. 97-07-0150 & 97-07-0154.

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

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Gregory R. Mueller, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Koskovich appeals from a June 12, 2008 order that denied his first petition for post-conviction relief (PCR). We reject defendant's claim that appellate counsel rendered ineffective assistance by failing to appeal the denial of defendant's motion to suppress his taped confession. We likewise reject defendant's contention that the trial judge was biased, and denied him a fair trial. We affirm.

I.

On April 19, 1997, defendant and his seventeen year old accomplice ordered two pizzas from a local pizzeria. When Jeremy Giordano and Giorgio Gallara arrived with the pizzas, defendant murdered Giordano. His accomplice murdered Gallara. Defendant and his accomplice rifled through the pockets of the slain men and removed their money.

Shortly after his arrest, defendant was interviewed by Detective Jack Repsha of the New Jersey State Police and Lieutenant Virgil Rome of the Sussex County Prosecutor's Office. After waiving his Miranda1 rights, defendant provided a taped statement in which he confessed his role in the murders. During the interview, defendant was asked by Detective Repsha whether at the time of the interview, he was under the influence of any drugs, medication or alcohol. Defendant responded that he had used prescription drugs, Percocet and Fioricet, the previous day and was "just getting over everything." Later in the interview, another discussion about defendant's use of those medications occurred:

Q: [] I guess you were of clear enough mind [at the time of the murders] to decide where you were going to park the car and how you were going to escape.

A: We . . . were yeah. I mean it [the prescription drugs] doesn't really affect you that real bad. But it does affect you. . . .

Q: Are you on them now?

A: I was before.

Q: No but I mean right now while we're giving this statement.

A: At this moment I'm coming down off of it.

When asked to describe how he had been treated by police, defendant stated that during his arrest police threw him to the ground and "the one guy kicked [him] in the forehead." In contrast to his complaint about the arresting officers, defendant made no complaint about his treatment by Repsha and Rome. Indeed, he stated, "I've been treated fine. There was [sic] no problems here." When asked if he had been forced or pressured to provide the oral statement, defendant stated "[n]ot at all."

Defendant filed a Miranda motion in which he sought to suppress his April 21, 1997 statement to Repsha and Rome. Following an evidentiary hearing, Judge Stanton denied the motion, finding that defendant had knowingly and voluntarily waived his right to remain silent.

On February 22, 1999, the judge conducted a pretrial conference, during which he directly addressed defendant and discussed with him the State's proposed plea agreement. Echoing the comments of defense counsel, Judge Stanton expressed his own belief that defendant was likely to be convicted, and could be sentenced to death. The judge urged defendant to therefore seriously consider accepting the State's plea offer, which would avoid the risk of the death penalty. Judge Stanton addressed defendant in the following terms:

Well, let me tell you that that is my view of the situation too. That does not effect how I will function as a judge, if I hear the case. If I hear the case as a judge, the case will have to be proven and the proofs will, we'll have to see what the proofs actually are before you get convicted. So I'm not prejudging your case. But I think that the likely outcome of the trial in this case is that you will be convicted. I think that's the likely outcome. . . .

I think it's virtually certain that you will be convicted. It's not virtually certain that you would get the death penalty, but this is a, there's a very significant chance that you would, and there's a real sense in which that might be the right outcome of this case from some points of view.

I don't think it would be the right outcome for the case in terms of my view of it. My perception is that, although you have in my judgment almost certainly committed these murders, again, they have to be proven, if we go to trial. I think it's, I take it as a working fact that you have committed them, and that's a terrible thing.

. . . .

So I think you would be well advised to plead guilty and to accept an offer . . . that you would get two consecutive life terms. I think you should do that myself. I'm not forcing you to do it. I'm not leaning on you as a judge. I would advise you as somebody who cares about your welfare enough, I would advise you to do it, but I'm not pressuring you to do it.

. . . .

So the best you can do practically at a trial, I believe, the best you can do is be convicted and not get the death penalty. The worst you can do is be convicted and get the death penalty. Those are your two choices.

Defendant proceeded to trial, where he was found guilty of the capital murder of Giordano and numerous other crimes. The trial then proceeded to the penalty phase. After unanimously finding that the aggravating factor substantially outweighed the mitigating factors, the jury sentenced defendant to death. Judge Stanton signed the death warrant.

On direct appeal to the Supreme Court,2 although appellate counsel raised three issues concerning the guilt phase proceedings, State v. Koskovich, 168 N.J. 448, 478-95 (2001), a challenge to Judge Stanton's denial of defendant's Miranda motion was not among them. Likewise, appellate counsel failed to raise on direct appeal any claim of bias by Judge Stanton arising out of the judge's remarks to defendant during the February 22, 1999 pretrial conference.

The Court affirmed defendant's conviction, but concluded that errors during the penalty phase warranted reversal of defendant's death sentence. The Court remanded for a new penalty proceeding. Id. at 540. At the conclusion of the penalty phase retrial, the jury could not unanimously agree that the aggravating factor outweighed the mitigating evidence beyond a reasonable doubt. As a result, on December 9, 2002, Judge Stanton sentenced defendant for the murder of Giordano to a term of life imprisonment, subject to a thirty-year period of parole ineligibility.

On September 9, 2003, defendant filed the PCR petition that is the subject of this appeal, raising a number of claims that were later supplemented by PCR counsel. However, because the denial of only two of those claims has been advanced on appeal before us, we limit our discussion of the PCR proceeding accordingly. In particular, Judge Conforti concluded defendant failed to establish that appellate counsel's failure to raise the Miranda issue on direct appeal constituted a prima facie case of ineffective assistance of appellate counsel. The judge reasoned that had such claim been advanced, it would have been rejected; therefore, defendant had not suffered any prejudice that would entitle him to post-conviction relief.

Next, on the issue of Judge Stanton's comments during the pretrial conference, Judge Conforti held that this claim was procedurally barred because defendant failed to raise it on direct appeal. The judge also observed that the claim was meritless because defendant had pointed to absolutely nothing in the trial record to establish that Judge Stanton's conduct of the trial demonstrated bias or was in any way unfair.

On appeal, defendant raises the following claims:

I. DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

II. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO MAINTAIN IMPARTIALITY, WHICH CONTRIBUTED TO THE CONVICTIONS.

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "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. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). The Strickland/Fritz standard applies with equal force to our evaluation of a defendant's claim of ineffective assistance rendered by appellate counsel. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987).

Our analysis of defendant's claims of appellate counsel's failure to raise the Miranda issue on direct appeal is evaluated in the context of well-accepted principles. First is the deference owed to a trial judge's findings of fact. When a judge's factual findings are supported by sufficient and credible evidence in the record, they are binding upon us. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Judge Stanton concluded that even if, as defendant claimed, he had been deliberately kicked in the head at the time of arrest, that conduct did not "overcome [defendant's] will to . . . give a statement or not give a statement" to Repsha and Rome hours later. Judge Stanton noted that two to three hours elapsed between defendant's arrest and when the questioning by Repsha and Rome began. Judge Stanton pointed to the "quiet, non-threatening circumstances" surrounding the taking of defendant's oral statement by those two officers. He also relied on defendant's statement that he had "been treated fine" by them. Based upon that factual context, Judge Stanton concluded that defendant's oral statement was given freely and voluntarily.

Similarly, on the issue of whether defendant was under the influence of Percocet or Fioricet at the time he gave his statement, Judge Stanton specifically relied upon the testimony of "three different police officers" who described "the demeanor of the defendant and his actions and his speaking and his coping with the situation at the time he was arrested." Based upon that testimony, which Judge Stanton credited, the judge found that defendant "was not intoxicated" at the time he gave his statement to police.

We have been presented with no meritorious basis upon which to disregard or even question Judge Stanton's comprehensive and well-supported findings of fact. Nor has defendant presented any valid basis for departing from the deference to which, under Locurto, such findings are entitled.

The second principle that informs our analysis of this issue is the State's obligation to prove beyond a reasonable doubt that the custodial confession was given only after a defendant made a "knowing, intelligent, and voluntary waiver of Miranda rights." State v. Cooper, 151 N.J. 326, 354-55 (1997). If such showing is made, the confession is admissible. Ibid. Having accepted Judge Stanton's finding that the statement given by defendant resulted from a knowing, intelligent, and voluntary waiver of his right to remain silent, we are satisfied that the standard articulated in Cooper was met. That being so, we are likewise satisfied that had appellate counsel challenged on appeal the denial of defendant's motion to suppress his oral statement, that argument would not have been successful. Thus, defendant has not met the second prong of the Strickland/Fritz standard because he has not, and indeed cannot, demonstrate prejudice. We thus reject the claim defendant advances in Point I.

III.

In Point II, defendant argues that the remarks made by the trial judge -- when he urged defendant to accept the State's plea offer of life imprisonment and thereby avoid the risk of the death penalty -- demonstrate a "bias against defendant" that "irreparably poisoned the atmosphere of impartiality, denying defendant a fair trial." Defendant points to the judge's comment that defendant was likely to be convicted, and the judge's assumption, "as a working fact," that defendant was guilty.

The State urges us to decline to consider this issue because it was not raised on direct appeal. Relying upon Rule 3:22-4, the State asserts that claims not advanced on direct appeal, when the opportunity to do so existed, are not cognizable in a PCR proceeding unless application of the Rule 3:22-4 procedural bar would result in "fundamental injustice." Rather than address the procedural bar, we exercise our discretion to consider the claim on the merits.

As the State correctly observes, defendant has failed to point to one single instance during the entire trial before Judge Stanton in which the judge made any remark, or issued any ruling, that even remotely suggests that the judge harbored any bias or prejudice against defendant. As we observed in an analogous context, a defendant "must offer something more than a bare allegation. [A defendant] must . . . allege specific facts which, if believed, would demonstrate the likelihood of injustice by a preponderance of the evidence." State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (holding that when a defendant alleges trial counsel rendered ineffective assistance by failing to investigate potential defense witnesses, defendant must detail the testimony the witness would have provided if called to testify), certif. denied, 162 N.J. 199 (1999). Although Cummings dealt with a slightly different factual scenario, its teaching is fully applicable here. At its core, Cummings requires us to reject the type of general and unsupported allegations that defendant has advanced here. We see no reason to depart from that principle. Thus, because defendant has pointed to nothing in the trial record to support his claim of bias on the part of the trial judge, we reject his arguments as meritless.

We note in passing that, based upon our collective experience, the remarks made by Judge Stanton on the day in question are typical of those made by trial judges at the time a capital murder indictment is placed on the trial list. Rule 3:9-1(e), which describes the procedures for conducting a pretrial conference, requires the judge to ask the prosecutor to describe, on the record, the facts and testimony the State anticipates producing at trial. After the prosecutor has done so, the judge is required to address the defendant to ensure that the defendant understands the State's final plea offer and his sentencing exposure. R. 3:9-1(e). As part of that discussion, experienced criminal trial judges routinely discuss the anticipated proofs with a defendant to assist in the defendant's evaluation of whether to accept the State's offer, or to reject it and proceed to trial.

We thus conclude that in the absence of any proof of bias, and in light of the Rule 3:9-1(e) standards for conducting a pretrial conference, defendant's claim that the judge was biased against him, and denied him a fair trial, is meritless. We thus reject the claim defendant advances in Point II.

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

2 When the death penalty was in effect, capital convictions proceeded directly to the Supreme Court.