May 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TODD CRISCI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Morris County, Indictment No. 02-12-1500.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2009
Before Judges Fisher and Baxter.
Defendant appeals the denial of his petition for post-conviction relief. We reject most of defendant's arguments but we agree that an evidentiary hearing should be conducted to inquire into the effectiveness of counsel with regard to the testimony of the State's medical expert and remand for such a hearing.
Following a trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), a(2); third-degree hindering his own apprehension, N.J.S.A. 2C:29-3b(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). He was sentenced to a term of imprisonment of forty-five years, subject to an 85% period of parole ineligibility on the murder conviction; the judge merged the other convictions and imposed a consecutive three-year prison term.
We affirmed the convictions and sentence, but deemed it inadvisable to consider defendant's claim of ineffective assistance of counsel, leaving those arguments for a future petition for post-conviction relief. State v. Crisci, No. A-5618-03T4 (App. Div. May 12, 2006). The Supreme Court denied defendant's petition for certification. 188 N.J. 220 (2006).
In October 2006, defendant filed a pro se petition for post-conviction relief, which was later supplemented after the appointment of counsel. The trial judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel and therefore did not provide defendant with the opportunity to explore the issues at an evidentiary hearing; instead, after hearing oral argument, the judge denied defendant's petition.
Defendant appealed, raising the following arguments:
I. MR. CRISCI'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
II. THE TRIAL COURT ERRED IN DENYING MR. CRISCI'S PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE IT WAS SHOWN THAT HIS TRIAL COUNSEL DID NOT ADEQUATELY INVESTIGATE THE CASE OR COMMUNICATE WITH MR. CRISCI PRIOR TO TRIAL AND WAS NOT PREPARED TO QUESTION THE STATE'S EXPERT.
A. Trial counsel failed to conduct appropriate investigations in preparing Mr. Crisci's defense.
B. Trial Counsel failed to adequately communicate with Mr. Crisci prior to trial.
C. Trial counsel was unprepared to question the state's forensic expert.
D. The PCR court improperly denied Mr. Crisci's petition for Post-Conviction Relief without conducting an evidentiary hearing in this matter.
We conclude that defendant should be given the opportunity to explore in greater detail the adequacy of trial counsel's preparation for and handling of the cross-examination of the State's forensic expert at an evidentiary hearing, as asserted in Point IIC. Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
When a defendant claims a deprivation of the effective assistance of counsel, the following test applies:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984).]
This same test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 59 (1987).
In defining the level of competence required by the federal and state constitutions, it is understood that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). In addition, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694, and to rebut that strong presumption, "a defendant must establish that trial counsel's actions did not equate to 'sound trial strategy,'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). Here, we cannot determine whether counsel's performance was constitutionally adequate absent further exploration at an evidentiary hearing.
Defendant was charged with having committed the first-degree murder of his live-in girlfriend of many years, Yvette Blakeslee. Evidence adduced at trial revealed that defendant was irate because Yvette was "sleeping around." When she did not come home on the evening of June 7, 2002, defendant threw out her personal belongings. The following evening, defendant found Yvette at a friend's apartment and they argued. Later that night, Yvette went to defendant's apartment, where they had sexual relations. Afterwards, defendant asked Yvette whether she was still having sex with Michael D'Angelis. She got angry and they fought.
During a custodial interrogation, defendant acknowledged that he inflicted the fatal injuries to Yvette, but he claimed that he only struck Yvette once, as a reflex when she kneed him in the groin. The State presented medical evidence regarding the extensive bruising to Yvette's head and face, and the traumatic injuries to her brain, to demonstrate that Yvette was struck many times. In addition, while defendant asserted in his custodial statement that he held his hand to Yvette's throat only momentarily, the State presented evidence of fractures of Yvette's hyoid bone and cricoid cartilage, which suggested more than momentary pressure to the throat.
The medical evidence offered by both sides also revealed a factual dispute about the time of death, which impacted upon defendant's position at trial that the murder was not purposefully or knowingly committed, but instead the product of a physical confrontation during which Yvette was the aggressor. To support that theory, defendant relied upon witnesses who testified that he and Yvette had a volatile relationship and that Yvette was often the aggressor in their fights. Defendant's version of the fatal encounter, as evidenced by his custodial statement, was that the physical confrontation commenced when Yvette struck him with a carpenter's framing square. In addition, defendant relied upon testimony that Yvette had cocaine, morphine and alcohol in her system at the time of death. The statement defendant gave to police also revealed that defendant stated that the physical confrontation occurred and ended at approximately 11:00 p.m. and that Yvette awoke the next morning in respiratory distress, which resulted in his rushing her to a local hospital.
The medical testimony dealt with the time of Yvette's death. The State's theory was that defendant purposefully and knowingly murdered Yvette between 5:44 a.m. and 9:30 a.m. on June 9, 2002; defendant's theory was that the physical confrontation occurred at approximately 11:00 p.m. the night before but that she died the next morning. At trial, Dr. Douglas Miller, the State's expert, testified about the injuries to Yvette's brain, noting the absence of hypoxic/ischemic changes, which formed the basis for his opinion about the time of death. Defense counsel objected to his testimony regarding the time of death; that is, defense counsel argued that although Dr. Miller's report mentioned the absence of hypoxic/ischemic change, it did not mention the time of death or correlate the relationship of his microscopic findings to the time of death. The judge overruled this objection and allowed the testimony.
In claiming the ineffective assistance of counsel in this regard, defendant argues that trial counsel failed to anticipate this testimony from Dr. Miller and was thus ill-prepared to cross-examine him on this critical point. Defendant relies upon counsel's own expression about his cross-examination of Dr. Miller when he argued defendant's motion for a new trial. At that time, in attempting to convince the judge that a new trial should be ordered, defense counsel said the following:
[T]he [c]court, I believe, erred in allowing the State's expert to testify as to the hypoxic ischemic reaction, I believe it was. I'm probably wrong now, as I was wrong during trial, as I tried to cross-examine him [on] something I had no idea about.
The reason the rule requires that if the State's going to present evidence as to an opinion that they provide a written report is so that I don't get in a situation, as I was caught in, trying in the midst of trial to understand a scientific concept and to cross-examine regarding a scientific concept of which I was not made aware prior to trial. I would have had an opportunity to talk to an expert to see if there was anything about that opinion and to prepare myself for cross-examination as to that point.
I don't believe I could have opened the door to that point, as I did not understand it existed. I was aware there was a microscopic evaluation, but there was no opinion testimony about the contents or the conclusions about that microscopic evaluation; therefore, if I go into time of death or other things there's no way in trial time of death would not have been something that would have come up. It was critical in this case to attempt to determine when in fact death did occur.
So I was caught unaware of a subject matter. Did my best to understand it during the minutes of trial, and truly failed to understand it, and to be able to adequately cross-examine. As a matter of fact, [I] brought up things that I believe were contrary to my client's interest because of my lack of knowledge as to that area.
I had asked the [c]court not to allow that information to come in, as I was not aware of the details of the opinion or what it was based on. Your Honor decided that it was within the context of his expert opinion and I believe it was not, and exposed my client to, at least for that period of time, [inadequate*fn1 ] representation as to that area, and exposed us to information coming in of which we were not prepared to rebut at all.
A review of Dr. Miller's report leaves no doubt that he never expressed an opinion as to the time of death. He did, however, as alluded to in counsel's argument during the motion for new trial, assert that his microscopic examination of Yvette's brain revealed no acute hypoxic/ischemic change. The opinion he was allowed to express at trial, over defense counsel's objection, was that this finding could only mean that Yvette died within two hours of her fatal head injuries.
In asserting the ineffectiveness of trial counsel, defendant argues that counsel should have recognized the significance of Dr. Miller's findings and been better prepared to deal with those facts during cross-examination. The State argues that any failings in this regard were not counsel's fault and, if blame is to be assigned, it should be placed on defendant's medical expert, who should have realized and alerted counsel about the significance of Dr. Miller's finding. In addition, the State argues that even if counsel understood the finding's significance when he cross-examined Dr. Miller, there was nothing he could do about it.
Both sides present colorable arguments regarding this particular contention. However, considering defense counsel's own expressions about his performance at trial with regard to this expert testimony, and considering the critical role the time of death appears to have played in the conflicting theories of the case, we find it appropriate to remand for an evidentiary hearing. At that time, the PCR judge can better assess the performance of trial counsel, the significance of the hypoxic/ischemic finding to the time of death, whether better preparation with this fact in mind could have made a difference in the cross-examination of Dr. Miller, and any other circumstance that may have relevance to this aspect of defendant's ineffective-assistance-of-counsel argument. In considering the second prong of the Strickland/Fritz test, the judge should also determine, if counsel's performance is found deficient, whether there was "a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58.
As we have already stated, we find no substance in any of defendant's other Sixth Amendment arguments worthy of discussion.
The order denying post-conviction relief is affirmed in part and vacated in part. The matter is remanded to the trial court for the conducting of an evidentiary hearing in conformity with this opinion. We do not retain jurisdiction.