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State v. Tormasi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WALTER A. TORMASI, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 97-04-0234.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 6, 2009

Before Judges Stern, Lyons and Espinosa.

In January 1998, defendant, Walter Tormasi, was tried and convicted of murder, contrary to N.J.S.A. 2C:11-3, and related weapons offenses for the ambush-style shooting of his mother, Frances Tormasi. Defendant was sixteen-years old at the time of the murder but, following the appropriate hearing, he was tried as an adult. He was sentenced to life imprisonment with thirty years of parole ineligibility.

Defendant thereafter appealed his conviction and we affirmed in an unpublished opinion filed on July 20, 2001, State v. Tormasi, Docket No. A-5530-97T5 (App. Div. July 20, 2001). Defendant then filed for certification before the Supreme Court, which was denied on January 10, 2002. State v. Tormasi, 171 N.J. 42 (2002). Thereafter, defendant filed a petition for post-conviction relief (PCR), which Judge Edward M. Coleman denied on July 23, 2007.

Defendant now appeals the order denying his PCR application and makes the following arguments for our consideration:

POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to properly cross-examine Brian Smith.

B. Trial counsel failed to properly examine defendant's father, Attila, Sr.

C. Trial counsel failed to present witnesses who would have rebutted the testimony of Kenneth Riker.

D. Trial counsel failed to investigate and present evidence implicating defendant's father, Attila, Sr., in the murder.

E. Trial counsel failed to protect defendant's right to a fair and impartial jury.

F. Trial counsel failed to present evidence concerning a trained police dog's inability to detect gunpowder on defendant shortly after the murder.

G. Trial counsel failed to impeach Maria Ivan with inconsistent portions of her statement to police.

H. Trial counsel failed to move to suppress illegally seized evidence and testimony.

POINT II THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY TRIAL COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL WAS FUNDAMENTALLY UNFAIR DUE TO THE ADMISSION OF DEFENDANT'S PRIOR BAD ACTS WITHOUT AN APPROPRIATE AND COMPLETE LIMITING INSTRUCTION.

POINT V THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF SMITH'S RECANTATION, WHICH CONSTITUTES NEWLY DISCOVERED EVIDENCE.

POINT VI DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED (NOT PRESENTED BELOW).

POINT VII THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.

POINT VIII THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT IX THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT X THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE DENIED.

We need not repeat here the extensive procedural history and statement of facts set forth in our prior opinion. State v. Tormasi, supra, Docket No. A-5530-97T5 (slip. op. at 1-15). After carefully reviewing the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11- 3(e)(2), and we affirm substantially for the reasons expressed by Judge Coleman in his thorough and well-reasoned oral opinion of July 17, 2007. We add only the following comments.

Defendant contends that trial counsel should have moved to suppress certain evidence discovered during the execution of an October 17, 1995, search warrant.*fn1 That warrant was issued in connection with the shooting of Neil Dougherty, a former police officer residing at the Tormasis' boarding house. It was alleged that defendant mistook Dougherty for his mother's boyfriend and fired shots through Dougherty's window, injuring him. The warrant permitted the police to search the "common areas" of defendant's family home for a nine-millimeter handgun that was suspected to have been used in the shooting.

Defendant contends the police impermissibly entered his father's bedroom and found receipts for a Taurus nine-millimeter handgun, which the State inferred to be the weapon later used in Frances Tormasi's murder. Defendant's father, Attila Tormasi (Tormasi, Sr.), testified at trial that he received the firearms referenced on the receipts from a relative, Joszef Toth. Toth also testified, claiming he gave Tormasi, Sr. various handguns as a gift. Defendant argues that the receipts and any testimony resulting from their existence should have been suppressed and his counsel was ineffective because he failed to make an objection to their introduction.

Defendant has raised versions of this argument both on direct appeal and in his PCR application. On direct appeal, we held that introduction of the receipts was admissible as impeachment evidence, regardless of the validity of defendant's Fourth Amendment argument. Judge Coleman likewise found defendant's argument lacked merit, also citing the receipts' admissibility for impeachment purposes.*fn2

Rule 3:22-4 expresses the well-settled principle that "post-conviction proceedings are not a substitute for direct appeal." State v. Cerbo, 78 N.J. 595, 605 (1979). A claim that might have been cognizable on direct appeal will not necessarily be considered in a PCR petition. Ibid. The rule incorporates a number of exceptions to ensure fairness to petitioners. It states:

[a]ny ground for relief not raised in a prior proceeding . . . is barred from assertion in a proceeding . . . unless the court . . . finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

[R. 3:22-4; State v. Mitchell, 126 N.J. 565, 584 (1992).]

Exception (a) to Rule 3:22-4 permits a claim for relief to go forward if the ground for relief could not reasonably have been raised in a prior proceeding. That exception sets an objective standard: for the petitioner merely to state that the ground had not occurred to him or her is not enough; the claim must be one that a reasonable attorney, aware of the relevant facts and law, could not reasonably have raised. State v. Mitchell, supra, 126 N.J. at 585.

Our courts have recognized such circumstances where the claim is based on testimony outside of the trial court that could not have been raised on direct appeal. Ibid. This rationale applies to a claim of ineffective assistance of counsel because an attorney cannot act as an advocate for his client while simultaneously arguing that he is offering ineffective assistance. State v. Morrison, 215 N.J. Super. 540, 544 (App. Div.), certif. denied, 107 N.J. 642 (1987).

Therefore, defendant's ineffective assistance of counsel claim is not procedurally barred.

In order to determine if trial counsel's failure to object to the admission of the receipts into evidence constitutes ineffective assistance of counsel, we must turn to the standards set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 692 (1984), and adopted by the Supreme Court of this State in State v. Fritz, 105 N.J. 42, 58 (1987). See State v. Savage, 120 N.J. 594, 612-13 (1990). In Strickland, the Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93; see also Savage, supra, 120 N.J. at 613. To assist in this determination, the Court outlined a two-part standard based upon grounds of performance and prejudice. To satisfy this standard, a defendant carries the following burdens:

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 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 [court's holding] . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.Ed. 2d at 693.]

In analyzing the "deficient performance" prong, "the test is whether counsel's conduct fell below an objective standard of reasonableness." Savage, supra, 120 N.J. at 614. A defendant, therefore, must demonstrate that the attorney's actions "were beyond 'the wide range of professionally competent assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). Reviewing courts should note that "'counsel is strongly presumed to have rendered adequate assistance' and to have made 'all significant decisions in the exercise of reasonable professional judgment.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed. 2d at 695).

With regard to the satisfaction of the second prong, that is, that defendant has been prejudiced by the actions of his counsel, the Strickland Court held that there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also Fritz, supra, 105 N.J. at 52. The reviewing court's principal focus "must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. at 2069, 80 L.Ed. 2d at 699.

Assuming defendant is correct in his assertion that the search exceeded the scope of the warrant and further assuming that he had standing to challenge that search, trial counsel's failure to object was harmless and therefore does not warrant reversal on ineffective assistance grounds. In applying the harmless error standard, we will disregard "[a]ny error or omission [by the trial court] . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; State v. Kuchera, ___ N.J. ___, ___ (2009). "[T]he same ultimate standard applies whether the error was objected to below or whether the error was first claimed upon appeal." State v. Macon, 57 N.J. 325, 337-38 (1971). We note that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967); State v. Castagna, 187 N.J. 293, 312 (2006).

Several witnesses testified to defendant's penchant for guns and specifically linked him to a nine-millimeter, making the receipts and Toth's and Tormasi, Sr.'s testimony concerning the weapons cumulative and unnecessary. For example, defendant's former girlfriend, Andrea Hamilton, testified about defendant's interest in firearms and stated that defendant showed her a hole in his basement wall which he claimed he caused by discharging a weapon. Carlo Rosati, a firearms examiner with the FBI, examined the nine-millimeter bullets recovered from the scene of Frances's murder, the Dougherty shooting, and the basement wall of the Tormasi home, and concluded that they had all been fired from the same weapon. He explained that the microscopic markings on the bullets were produced by the same gun barrel and noted that the general characteristics of the weapon used were similar to a Beretta, Taurus, Targe, Cobray, and Astra nine-millimeter gun.

Several of defendant's friends also testified. Bradford Krill and Andrew Cummings stated that defendant told them he owned a nine-millimeter handgun. Defendant specifically told Cummings that he carried a handgun with him and had fired it in the past. Jenny Riker, a friend from defendant's neighborhood, testified that a few days before Halloween of 1995, defendant displayed an "automatic" handgun in his bedroom. Eric Diaz, a classmate of defendant, had seen him with a handgun on "one or two occasions."

Kenneth Riker, who had gone to school with defendant since the sixth grade, was at Warren Acres, a juvenile detention center, when defendant was brought there after the shooting of his mother. Riker testified that defendant admitted to shooting his mother with a nine-millimeter handgun "eight to ten times . . . ."

Clearly, there was a myriad of evidence connecting defendant to a nine-millimeter handgun in this case.*fn3

Particularly damaging was the testimony of Hamilton concerning defendant discharging a nine-millimeter gun in his basement. The State offered the opinion of an expert witness who determined that the gun that fired the bullet into the basement wall was the same gun used to kill Frances. Receipts showing Tormasi, Sr. was a gun owner were certainly not necessary to show defendant had access to weapons, particularly a nine-millimeter handgun. The State was able to make that point abundantly clear based solely on the testimony of its other witnesses. Therefore, trial counsel's failure to object to the receipts and the testimony associated with them was harmless "beyond a reasonable doubt" not capable of producing an unjust result.

Because defense counsel's error was harmless, defendant's claim of ineffective assistance fails the Strickland/Fritz test. While trial counsel may have possibly succeeded in excluding the gun receipts had he made the proper objection, it is a long settled principle that there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The jury had ample, overwhelming evidence pointing to defendant's guilt beyond a reasonable doubt. The evidence specifically connecting defendant to a nine-millimeter handgun was equally overwhelming. As such, defense counsel's failure to raise an objection was not ineffective assistance of counsel and we reject defendant's argument.

Defendant argues for the first time on appeal that he was denied effective assistance of PCR counsel "due to [PCR counsel's] failure to brief all issues raised in defendant's PCR petition, supplemental petition, second supplemental petition and brief." We reject this contention.

Because post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus and is a safeguard to ensure that a defendant is not unfairly confined, the courts have a "compelling judicial interest in sustaining only those convictions free from constitutional error." State v. Preciose, 129 N.J. 451, 454 (1992); see also State v. Mayron, 344 N.J. Super. 382, 386 (App. Div. 2001) (remarking that PCR is a crucial component of the criminal process provided to defendants). In keeping with the view of the overarching importance of providing defendants a final opportunity to raise constitutional errors that could not have been raised on direct appeal: our court rules . . . state that every defendant is entitled to be represented by counsel on a first PCR petition; . . . that assigned counsel may not withdraw based on the ground of "lack of merit" of the petition; and that "counsel should advance any grounds insisted on by defendant notwithstanding that counsel deems them without merit." [State v. Rue, 175 N.J. 1, 13 (2002) (quoting R. 3:22-6).]

Our Supreme Court has clearly stated that counsel is not at liberty to concede lack of merit to his client's claims but rather is obliged to state the client's arguments without expression of counsel's own opinion of their worthlessness, leaving the ultimate determination for the judge. Id. at 16.

The brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims. State v. Webster, 187 N.J. 254, 257 (2006). PCR counsel may list defendant's claims or incorporate them by reference so that the judge may consider them. Ibid. "That procedure, which will serve to preserve defendant's contentions for federal exhaustion purposes, is all that is required." Ibid.

In this case, PCR counsel clearly complied with the requirement that she present all of defendant's arguments, regardless of their merit. PCR counsel filed a seventy-page PCR brief containing eleven points. She incorporated in that brief, by reference, defendant's PCR petition, supplemental petition, and briefs. In total, PCR counsel filed nearly 400 pages in support of defendant's petition. Defendant does not point to any portion of his PCR counsel's brief where she questions the viability of his arguments. Instead, defendant contends that PCR counsel did not address his claims adequately.

The law is clear that when a defendant wishes to assert an argument on a PCR petition that has no merit, his counsel is only required to "list" those arguments. PCR counsel is not required to concoct lengthy legal arguments in support of frivolous assertions. It is clear from the record that PCR counsel in this case complied with the applicable rules and set forth all of defendant's arguments, regardless of their merit.

We next address defendant's claim that the PCR court erred in denying his motion for an evidentiary hearing to establish "the claims set forth in support of post-conviction relief." Defendant argues that denial of such a hearing warrants reversal. We disagree. Defendant's main claim for PCR was for ineffective assistance of trial, appellate, and PCR counsel. Courts ordinarily grant evidentiary hearings to resolve ineffective assistance of counsel claims where the defendant has presented a prima facie claim in support of PCR. Preciose, supra, 129 N.J. at 462; State v. Goodwin, 173 N.J. 583, 596 (2002). As discussed thoroughly in Judge Coleman's decision, defendant has failed to set forth a prima facie showing entitling him to an evidentiary hearing on ineffective assistance of counsel grounds. Defendant likewise failed to present a prima facie case on any of his other arguments. As Judge Coleman noted, "[t]he evidence of guilt in this case was overwhelming." Therefore, Judge Coleman acted within his discretion in denying defendant's request for an evidentiary hearing.

Defendant also claims that the trial judge did not give an adequate limiting instruction for the N.J.R.E. 404(b) evidence admitted against him. Defendant raised this argument on direct appeal and we therefore need not address it here. R. 3:22-5. We note, however, that defendant's contention is simply not supported by the record. The trial judge did give such an instruction and it was thorough. He instructed the jury as follows:

This evidence is offered for a very limited, specific purpose. The evidence that the person committed a prior wrong on a specific occasion is inadmissible to prove his disposition to commit crimes for which he has been indicted. . . .

In other words, such evidence must not be considered by you as disclosing any general propensity or predisposition on the part of the Defendant to commit crime or crimes.

Defendant's assertion is therefore rejected.

Defendant sets forth eighteen additional arguments which his counsel does not brief, but merely lists, "in accordance with State v. Rue, 175 N.J. 1 (2002) and State v. Webster, 187 N.J. 254 (2006)." These arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2); State v. Ingram, 196 N.J. 23, 42 (2008). Affirmed.


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