On certification to the Superior Court, Appellate Division.
For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.
Norman Grist, Jr. (Grist) was shot four times by Michael Talotti while in his warehouse office. Although seriously injured, Grist was not killed. Several hours after the shooting, Grist's son, Norman Grist, III (Norman), gave a statement to the police implicating himself, as well as respondents Talotti and Saverio Wayde Buonadonna. All three were indicted on various charges arising from the shooting.
Knowing that Norman did not intend to testify, the State reviewed his statement and concluded that the statement could not be effectively redacted to omit references to his codefendants.*fn1 Accordingly, the State moved pursuant to Rule 3:15-2(a)
and under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), to sever Norman's trial from the trial of his two codefendants. Defense counsel stipulated off the record that the cases did not require severance. The trial court, therefore, allowed the three codefendants to be tried together. Norman did not testify but his statement was admitted in evidence. All three defendants were convicted.
In his appeal to the Appellate Division, Buonadonna contended for the first time that he was entitled to a new trial because of ineffective assistance of counsel. One of the grounds asserted for his ineffective-assistance claim was that trial counsel "was grossly ineffective for stipulating that his case need not be severed."
The Appellate Division found that counsels' waiver violated defendants' rights under Bruton because "[s]uch a fundamental constitutional right should not have been found [by the trial court] to have been waived by counsel alone." This appeal, therefore, concerns whether defense counsels' waiver of the severance rights of Buonadonna and Talotti, without respondents themselves assenting to the waiver on the record, constitutes ineffective assistance of counsel. The resolution of that question depends on the characterization of a Bruton right in relation to the Constitution and the appropriate level of judicial scrutiny that attaches to the waiver of such a right.
We granted the State's petition for certification, 118 N.J. 192, 570 A.2d 957 (1989), and now reverse.
A. Family History and the Shooting Incident
Grist, the victim, owned and operated a family moving-storage company as well as a family farm. At the time of the shooting, the Grist family consisted of Grist, his wife, Mary (Mrs. Grist), and four children. Norman, three weeks short of his eighteenth birthday, his younger sister, Evelyn, sixteen, and
his brother, Edward, fourteen, all lived at home with their parents. An older sister had married and moved away from home.
Long before the shooting, Grist and Norman had a bad relationship, characterized by the father's abusive behavior toward his son. In 1978, Grist developed a rare blood disease that, according to his wife, caused Grist to become even more abusive toward Norman than he had been previously.
Grist's violent and aggressive nature was discussed frequently during the trial following the shooting. Grist testified that he collected guns and always kept them loaded. A member of the National Rifle Association, Grist often advised his children that "an unloaded gun is a useless gun." Mrs. Grist testified that during conflicts with Norman, Grist "would hit him, curse him, belittle him and on several occasions . . . pulled a knife, a gun." She described her husband as "cruel" and "very harsh" to her son. Grist, as well as other witnesses, also testified that Grist had aimed guns at his son during arguments and had threatened to shoot. Mrs. Grist testified that Norman, although physically imposing (6'4", 240 pounds), would walk away from Grist's outbursts. She testified as well that her husband routinely said that he wanted to kill somebody -- "It was just his manner of speaking."
Other members of the Grist family also described Grist's belligerent nature at trial. The youngest daughter, Evelyn, testified that "plenty of times" she, her brothers, and her mother had complained of Grist's violent and mean nature, and had said of Grist, "I wish he were dead."
Grist himself admitted that his temper was at times uncontrollable. Fifteen years before the shooting that led to this trial, Grist had hit his wife, hospitalizing her and necessitating surgery to repair her eye.
While living with his family in January 1985, Norman left school and began working nights in a restaurant. Within a few months, he met Buonadonna, a resident of Philadelphia. Mrs.
Grist testified that she first became aware of Buonadonna when her son told her that he had agreed to sell drugs for Buonadonna in the Margate and Atlantic City areas. Norman told his mother that he owed money to Buonadonna for drugs, and that Buonadonna would stay with him as his "bodyguard" until Norman paid the debt. According to Mrs. Grist, "Norman was afraid of him. It was obvious." Pat LaRotunda, a school-friend of Norman, testified that Norman had said he owed money to Buonadonna for "a loan shark thing." Mrs. Grist said that Norman "wanted to make a car payment, and if he took this drug and sold it he could make his car payment and it was like $1,500, but because you don't pay it on a certain time there was interest." Norman told his mother that he had flushed the drugs down the toilet and could not pay back Buonadonna. After that conversation, Mrs. Grist gave Norman $200 to give to Buonadonna and told her husband about the debt. Grist became enraged but ultimately gave Norman $300. Mrs. Grist testified that she then gave another $189 to Norman and finally that she paid $3,000 to Buonadonna in a Margate parking lot. In his testimony Buonadonna denied all allegations concerning drugs, drug dealing, and loan sharking.
Mrs. Grist also testified that "there was a nice side" to Buonadonna, and that after she paid the money, the two young men became friends. Buonadonna continued to spend time at the Grist home, often bringing with him Salena Brocco, who was his girlfriend and a friend of Norman and Talotti. All three became aware of Grist's combative nature. Brocco testified that Norman told her on various occasions that "[h]e never got along with his father and he didn't want him around and he wished he was dead." Brocco also said that she had overheard Norman tell Buonadonna and Talotti something similar approximately two weeks before the shooting. Evelyn Grist also overheard a conversation among the three codefendants during which one of them (she could not recall which one) said, "I could just kill him [Grist]." However, Evelyn testified that she did
not take the conversation seriously, and described it to the court as "idle conversation" rather than a "serious plan."
Edward Grist, Norman's younger brother, overheard several conversations between Norman and Buonadonna in which the two discussed robbing and shooting Grist. Edward testified that the two asked him where the victim kept cash at the office. Edward told them that they could expect to find several thousand dollars stored in a can on top of a filing cabinet in the office of the warehouse where Grist ran the family moving business. According to Edward, the defendants told him that they planned to rob Grist at his warehouse by going there on the pretext of "buy[ing] furniture [for Talotti] to move and . . . ask[ing] my father for an estimate [of the cost of moving Talotti]."
Edward further testified that Buonadonna and Norman discussed the fact that the Grist family owned real estate. In another conversation, all the defendants indicated they wanted to obtain properties belonging to the victim and sell them to buy a car. On at least three or four separate occasions, Edward heard Buonadonna say that he would like to kill Grist. Edward, however, did not take the conversations seriously.
At the trial, Grist, Buonadonna, and Talotti all testified that the day before the shooting, all three defendants had approached Grist to discuss buying furniture and moving Talotti's possessions from one place in Philadelphia to another. Grist told the defendants to meet him early the next morning, September 11, 1985, at the warehouse. He testified that he was apprehensive of the three young men and had brought a gun with him that morning. Grist accompanied the three defendants into the warehouse to discuss Talotti's moving requirements. Grist testified that within minutes, he ordered his son "in kind of rough terms" to leave because Norman looked "kind of bored and disinterested."
After Norman left, Grist sat behind his desk and began to make an estimate for Talotti's move. Talotti sat in front of
Grist, and Buonadonna remained standing behind Talotti. Grist testified that Buonadonna and Talotti were not responding cooperatively to his questions and that he requested more information. At that moment, Grist made a series of movements that culminated in him reaching for his holster and Talotti firing five shots at him from close range.
Because Grist was referring to a photograph while testifying at trial, the record is not completely clear. Nonetheless, according to Grist:
So -- and with that [telling the two he needed more information], and I was faced this way, so I swivelled back there again. That black holster was over here, and I don't know, I don't know why I took it and moved it over here and turned back to my position here, that slide [that he was writing the estimate on] is down here, and I had a pile of junk in the way and I grabbed this and I went like this, and there is an in and out coming letter basket obscuring the way, plus a pile of other papers on that desk, and I don't know what this guy thought when I did this, I never gave it a second thought, I turned this way and the next thing I knew firing began.
In his brief, Buonadonna interprets the "this" mentioned by Grist as being the empty black holster.
Testimony of Buonadonna and Talotti regarding the events inside the warehouse differed from that of Grist. Both Buonadonna and Talotti denied that they had a weapon when they entered the warehouse. Buonadonna testified that when he entered the warehouse, he saw a "shiny" gun unstrapped in a holster on the desk, partially covered by papers. According to Buonadonna, after Grist ordered his son to leave the office and began to write the estimate for Talotti, Grist became "very upset and very mad," and questioned Buonadonna about the "outrageous interest" Buonadonna was charging Norman. Talotti testified that Grist questioned Buonadonna in a "very arrogant, very loud" voice about giving drugs to Norman. Buonadonna testified that he replied, "Mr. Grist, I don't know what you're talking about."
Both Buonadonna and Talotti testified that Buonadonna then told Talotti that he and Talotti were going to leave. Talotti testified that as he got out of his chair to leave, he saw the gun
on the desk and that Grist "screamed" at them, "Where the fuck do you think you're going?" Talotti then sat down again in the chair, but Buonadonna continued to leave the warehouse, his back to the other two. Buonadonna turned and saw Talotti and Grist struggling, saw the gun hit the desk, and saw Talotti pick it up. Talotti testified that Grist stood up, reached for his gun and took it out of the holster. Talotti "struck him hard," forcing the gun from Grist's hand, took the gun, and yelled "Stop!" Grist reached to the right-hand side of his desk for what Talotti said he thought was another gun. At that point, Talotti again yelled "Stop" and began to fire.
Grist was hit four times, all on the right side of his body: once in the neck, once in the upper chest, and twice in the shoulder. Grist testified that after the firing stopped, he heard someone try to take the moving cost estimate from his desk, and heard a voice say, "Let's get out of here." Grist then called the police, walked out the door, reentered the warehouse, and finally fell outside the warehouse door where he was found by the emergency crew. His wife testified that he also called her at work at this time. His condition was critical, but he never went into shock, and he retained consciousness throughout the entire incident.
After the shooting, Buonadonna and Talotti immediately left the warehouse. Talotti told Norman in the car that "you wouldn't believe what just happened. Your father tried to pull something on me. I shot at him and I think I hit him." The three then drove off in Buonadonna's car. At one point Talotti told Norman to stop the car because he had to get rid of the gun. Talotti left the car and threw the gun into a body of water alongside the road. At Philadelphia, the codefendants parted company. Talotti went to his cousin's house. Buonadonna and Norman went to Buonadonna's house where Norman called his mother to see how his father was doing. Buonadonna's parents drove Norman home.
Immediately after the shooting, Grist advised the police that he had been shot "by Wade Buonadonna, Mickey [Talotti] and my son, Norman." On the evening of the shooting at the behest of the police, Mrs. Grist took Norman to the police station where he was given a Miranda warning. Initially, Norman told the police that he had no knowledge of the shooting. After being informed by the police that his father had implicated him, Buonadonna, and Talotti in the shooting, he gave police a second version. Finally, after the police pointed out to him the inconsistencies of his second statement, in the presence of his mother, Norman gave police a third statement. This third taped statement is at the crux of this appeal.
In his statement, Norman admitted that the three codefendants went to the warehouse on September 11, 1985, to rob the victim, but he claims that he did not know they were going to attempt to kill his father. Norman also indicated that the three of them had had numerous conversations about robbing his father of money supposedly kept in various locations inside the warehouse. Norman elaborated on the conversations he had had with his codefendants during which it was disclosed that Buonadonna and Talotti intended to kill Norman's father to obtain the Grist family's property after the victim's death. Norman insisted that he told his codefendants that he would not have free access to the property because it was held in trust, but they would not listen to him.
Essentially, as Norman explained, the plan was that Norman would inherit the property after his father's death and subsequently share the proceeds of the robbery and murder with Buonadonna and Talotti. Norman further confessed to police that he knew Talotti had a gun when they went to the warehouse that day. He also told police that the gun used to shoot his father had been thrown into the bay off of Wellington Avenue in Atlantic City. After the taped statement had been taken, the police released Norman into his mother's custody and drove Norman and his mother home. On the way, however, Norman stopped to show the police where Talotti had thrown
the gun. Subsequently, police found the gun, a .32 caliber Smith and Wesson ...