On certification to the Superior Court, Appellate Division, whose opinion is reported at
SYLLABUS BY THE COURT
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized). In this appeal, the Court considers whether the trial court erred in not allowing defense counsel an opportunity to cross-examine one of the State's crucial witnesses concerning the reason the witness changed her statement after a polygraph test revealed she was not being truthful. Also before the Court is the issue of ineffective assistance of counsel.
Sometime after 1:00 a.m. on October 24, 1999, an altercation took place among patrons of Sinners Go-Go Bar (Sinners) in Elizabeth. In particular, Bennett Grant was beaten by a number of individuals just outside Sinners and he died at the hospital five hours later from various injuries to the head, including complications from multiple head trauma caused by blows with a lead pipe and a twenty-pound Belgian block. Defendants Josephine Castagna and Thomas D'Amico were among those arrested, tried, and convicted of various charges. More particularly, Castagna was convicted of second-degree aggravated assault, and D'Amico was convicted of first-degree aggravated manslaughter, two counts of second-degree official misconduct, and fourth-degree obstruction of justice (D'Amico was an off-duty police officer).
The other key individual for purposes of this appeal is Violet Arias. As part of a plea agreement, Arias pled guilty to second-degree reckless manslaughter and became a key State's witness. During the police investigation of the incident, Arias gave the police at least three versions of the events that transpired. In the presence of her lawyer, she voluntarily gave her first statement on October 26, 1999. At that time, Arias denied any involvement in the attack upon Grant and only admitted to seeing another patron strike Grant, indirectly implicating Castagna by stating that after the incident Castagna expressed alarm about leaving her fingerprints on a pipe at the scene. Following the indictment, Arias was interviewed a second time. On September 4, 2001, in the presence of her attorney, she admitted she lied in portions of her October 26, 1999, statement. She denied kicking Grant on his head or using a weapon, implicated the other co-defendants in the assault, and claimed that Castagna hit Grant with a pipe. The State offered Arias a plea agreement if she would take a polygraph examination. Arias took the test and agreed that the results could be admitted if she went to trial. The officer conducting the polygraph examination determined that Arias was being deceptive during the examination. After being informed of the test results, Arias agreed to provide another statement. In her third statement, Arias admitted that she kicked Grant in the head, but continued to deny that she hit him with an object. Following her third statement, Arias was not asked to take another polygraph test. The State conditioned the plea agreement on Arias providing "truthful testimony" against her co-defendants.
At trial, defendants moved to use the polygraph test results to impeach Arias's testimony. They also sought to call the polygrapher as a witness. The trial court denied the motion, reasoning that the defense had no right to admit the polygraph test results because they are not admissible absent a stipulation, and because the defendants were not a party to the stipulation between Arias and the State. The trial court made it clear that defendants were not prohibited from cross-examining Arias regarding any inconsistencies in her testimony, but the defense was precluded from making any reference to the polygraph test results and the opinion of the polygrapher. Ultimately, defense counsel was able to elicit from Arias that she had lied in her initial statements and that she then decided to tell the truth about her kicking Grant on the head when she was confronted with evidence that she was lying. But, again, defense counsel was not allowed to present evidence in respect of the polygraph test. Arias claimed that the reason she finally told the truth was because she did not want to live with the lie anymore. Defense counsel objected to this testimony, claiming that the real reason was the results of the polygraph test. The trial court overruled that objection.
On appeal, defendants asserted reversible error in the trial court's refusal to allow defense counsel an opportunity to cross-examine thoroughly Arias concerning the reason she changed her statement after the polygraph test revealed she was not being truthful. In a published opinion, the Appellate Division reversed the convictions and remanded for a new trial. The panel found that defendants were deprived of their constitutional right to cross-examination when the trial court prohibited them from asking Arias questions concerning the results of a stipulated polygraph examination. The panel also concluded that D'Amico received ineffective assistance of counsel.
The Supreme Court granted the State's petition for certification in State v. Castagna,
The opinion of the court was delivered by: Justice Wallace, Jr.
Defendants Josephine Castagna and Thomas D'Amico were tried together with Jean Morales for various charges arising out of the death of Bennett Grant. Castagna was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b), and D'Amico was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), two counts of second-degree official misconduct, N.J.S.A. 2C:30-2 (a) and (b), and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1. On appeal, both defendants asserted reversible error in the trial court's refusal to allow defense counsel an opportunity to cross-examine thoroughly one of the State's crucial witnesses concerning the reason the witness changed her statement after a polygraph test revealed she was not being truthful. The Appellate Division reversed and remanded for a new trial. We conclude it was error to limit the cross-examination of the witness about the results of her polygraph test, but that the error was harmless beyond a reasonable doubt.
D'Amico also claimed he received ineffective assistance of counsel, and the Appellate Division agreed. We conclude that on this record, D'Amico failed to establish his claim for ineffective assistance of counsel. We reverse and remand to reinstate the convictions and sentences.
The disputed facts are more fully set forth in the Appellate Division decision. State v. Castagna, 376 N.J. Super. 323 (2005). We recite the facts necessary to decide this appeal.
On the evening of October 23, 1999, Edward Gentile, Carmine Perrotti, Lewis Rodriguez, Christopher Longo, Thomas D'Amico, Violet Arias, Ann Truzzolino, Alvin Baez, and Josephine Castagna were present at Sinners Go-Go Bar (Sinners) in Elizabeth. Some time around 10:30 p.m., Arthur McKeown and Bennett Grant arrived at Sinners. Truzzolino, who was a friend of McKeown's, approached the two men and McKeown introduced Grant to her. Later, several of Truzzolino's friends, including Arias and Castagna, joined that group.
After 1:00 a.m., McKeown and Grant decided to leave. Truzzolino joined them as they departed. Arias, who had driven to Sinners with Truzzolino, followed them outside, where she convinced Truzzolino to return to the bar. Grant objected and followed Arias and Truzzolino back inside Sinners. Shortly thereafter, an argument ensued. Sinners' management intervened and asked Grant to leave. Grant acceded, exited Sinners and started to walk to the car with McKeown. Arias, Truzzolino, and other patrons followed Grant and began screaming and running after him. Arias approached and attempted to hit Grant.
Tony Velez, a doorman at Sinners, testified that when Arias brought Truzzolino back inside, Grant also returned. Arias was angry and cursed at Grant. Grant was asked to leave and he did. Velez noticed a group of patrons run outside, surround Grant and McKeown and punch and kick them. Eventually Grant and McKeown fled towards a nearby bridge with the crowd in pursuit. At that time, a car pulled up and several people entered the car, which sped after Grant and McKeown.
Joseph Machado, Sinners'general manager, and Pablo Fragoso, the club's operations manager, both testified that there was an altercation between Arias and Grant in Sinners that night. Both agreed that Arias was very angry and cursed at Grant. Machado tried to restrain Arias but she wriggled free and ran out the back door. Fragoso followed them outside. He saw Arias pulling at Grant's hair as she attempted to strike him, but Grant blocked her punches with his arm. Fragoso described Arias as being out of control. By then, a crowd had gathered around Grant, screaming hostile words at him. Grant ran and the crowd pursued him. Fragoso observed the crowd running towards the bridge, and he followed them. Fragoso noticed a Jeep stopped on the bridge with its doors open. He observed defendants and others kicking Grant. He claimed that Arias was enraged and repeatedly called Grant "names" as she kicked him and hit him with a piece of metal. Eventually, Fragoso pulled Arias away and tried to stop D'Amico from kicking Grant. D'Amico was an Elizabeth police officer and was off duty the night of the incident. Fragoso yelled at D'Amico, "What are you doing? You know this is your job." Fragoso then observed Morales drop a Belgian block, weighing approximately twenty-five pounds, on Grant's head. The crowd grew silent and began to disperse.
Elizabeth and Jose Mojica lived in the area where the bridge was located and heard the commotion. Mrs. Mojica called the police while her husband peered out the window. Mr. Mojica noticed a Jeep stop, pick up two people, and pursue a man. As the Jeep overcame the man, the front passenger side door swung open, striking the man who tried to maintain his balance by holding the front of the Jeep. The Jeep made a sudden stop, jerking the man forward and causing him to fall to the ground.
Arias testified that she saw Carmine Perrotti's Jeep approach. She noticed D'Amico enter the front passenger seat and Perrotti enter the back seat. The Jeep then pulled beside Grant. When D'Amico opened the front passenger door, it struck Grant. Arias admitted that she and the other defendants kicked Grant, and that Castagna hit him with a rod.
Alvin Baez testified that Lewis Rodriguez was driving Perrotti's Jeep when it stopped for Perrotti and D'Amico. Baez claimed that when the Jeep drove onto the bridge, it stopped, and Grant ran into the front passenger side fender. D'Amico opened the passenger door as Grant fell to the ground. Baez admitted he kicked Grant a couple of times on the right side of his face. The police arrived and investigated the incident. Grant was rushed to the hospital. He died from his injuries five months later.
Subsequently, Arias, Baez, Castagna, D'Amico, Gentile, Morales, and Perrotti were indicted for various crimes arising from the incident. Arias, Baez, Gentile, and Perrotti all pled guilty to second-degree reckless manslaughter, N.J.S.A. 2C:43-7.2. Arias, Gentile, and Perrotti each received a seven-year sentence with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), but Baez received a non-NERA sentence because he was the first to reach agreement with the State.
Defendants Castagna, D'Amico, and Morales were tried jointly before a jury between January 7 and February 11, 2002.
In addition to the numerous eyewitness accounts concerning the incident, the State presented the expert testimony of Dr. Carlos Fonseca, an assistant medical examiner for the Union County Medical Examiner's Office, who performed an autopsy on Grant. He concluded that Grant's death was caused by complications from multiple head trauma, consistent with being kicked and struck by blunt objects. He opined that no single blow was more likely than any other to have caused Grant's death.
Dr. Douglas Miller testified as an expert in neuropathology. He opined that the multiple contusions on Grant's brain caused his death, and that Grant would have died even if the Belgian block had not been dropped on his head. D'Amico presented Dr. Daniel Perl as an expert in neuropathology. Dr. Perl concluded that the large depressed skull fracture most likely caused Grant's death and that the fracture was likely caused by the crushing weight of the block. Dr. Perl disagreed with Dr. Miller's conclusion that death would have occurred without the crushing injury from the Belgian block.
D'Amico testified in his own defense. He recalled seeing Arias screaming at Grant inside Sinners. He claimed that Grant hit Arias, so he grabbed Grant by his jacket and told him to leave. Later, he followed the crowd outside in pursuit of Grant. D'Amico said that a Jeep approached Grant, but it did not hit him. D'Amico claimed he was not inside the Jeep. He admitted that he kicked Grant hard in his lower back, buttocks, and legs, but claimed he did not intend to cause serious bodily injury to Grant. D'Amico recalled that Fragoso grabbed him and told him that he could lose his job. D'Amico claimed he never saw Morales drop a block on Grant's head. He admitted that he lied to the police when he reported what happened that evening.
The jury found Castagna guilty of aggravated assault as a lesser-included offense of reckless manslaughter, and not guilty of murder, possession of a weapon for an unlawful purpose, and possession of a weapon. The trial court imposed an eight-year sentence with an eighty-five percent parole disqualifier.
The jury found D'Amico guilty of aggravated manslaughter, two counts of official misconduct, and obstruction of justice, but found him not guilty of murder. The trial court imposed a twenty-year sentence with an eighty-five percent parole disqualifier for manslaughter and, after merger of the remaining convictions, a consecutive seven-year sentence for official misconduct. Thus, D'Amico's base aggregate sentence was twenty-seven years.
The jury found Morales guilty of murder, aggravated manslaughter, possession of a weapon for an unlawful purpose, and possession of a weapon. After merger, the trial court imposed a fifty-year term of imprisonment with a thirty-year parole disqualifier.
Castagna, D'Amico, and Morales appealed. The Appellate Division consolidated the appeals and, in a published opinion, reversed the convictions and remanded for a new trial. Castagna, supra, 376 N.J. Super. at 354. The panel found that defendants were deprived of their constitutional right to cross-examination when the trial court prohibited them from asking Arias questions concerning the results of a stipulated polygraph examination. Id. at 354. The panel also concluded that D'Amico received ineffective assistance of counsel. Id. at 363. Additionally, the panel reversed Morales' conviction because the trial court failed to instruct the jury on the elements of passion/provocation manslaughter as a lesser-included offense of the crime of murder. Id. at 358.
We granted the State's petition for certification in State v. Castagna, 185 N.J. 35 (2005), and State v. D'Amico, 185 N.J. 36 (2005), but denied the cross-petition in State v. Castagna, 185 N.J. 36 (2005) and the State's petition in State v. Morales, 185 N.J. 36 (2005). We subsequently granted amicus curiae status to the Association of Criminal Defense Lawyers of New Jersey.
The State contends that the Appellate Division erred in concluding that the polygraph evidence was admissible as a matter of constitutional law and fundamental fairness. The State maintains that other defendants may not admit polygraph test results merely because one defendant enters into a stipulation with the State that the results of a polygraph test will be admissible at that defendant's trial. As to the other defendants, the State urges that it is an unstipulated polygraph examination that is not admissible. Further, the State urges that because defendants were given ample leeway to cross-examine the witness about changing her statement after being confronted with evidence that she had lied, any error in not permitting the jury to hear about the polygraph test results was harmless.
In regard to D'Amico, the State contends defense counsel's opening statement acknowledging that D'Amico was a criminal and would testify in his own defense was trial strategy and did not constitute ineffective assistance of counsel. The State urges that defense counsel's tactic of seeking to gain credibility by not denying the obvious was a permissible strategy. Moreover, the State notes that counsel's strategy may have been dictated by D'Amico, and, therefore, D'Amico's claim should be resolved in a post-conviction relief proceeding in which counsel will have the opportunity to explain the challenged conduct.
Finally, the State maintains that there is no evidence that, but for defense counsel's conduct, the outcome would have been different.
Castagna and D'Amico contend that the Appellate Division correctly concluded that they were denied their constitutional right to confront a witness when the trial court precluded defense counsel from cross-examining a prosecution witness on the results of a stipulated polygraph. Castagna adds that the trial court's ruling permitted the prosecutor to conceal from the jury the same polygraph ...