October 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SUSAN GIGLIOTTI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-07-1482.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Collester and Sabatino.
Following a seven-day jury trial in 1990, defendant was found guilty on all six counts of an indictment that stemmed from her involvement in the murder of her husband, Joseph Gigliotti ("Joseph"). In particular, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; second and third-degree weapons offenses, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:39-5(b); and third-degree receipt of stolen property, N.J.S.A. 2C:20-7. Defendant received a sentence of life imprisonment with thirty years of parole ineligibility, plus a ten-year consecutive sentence on the conspiracy conviction and various concurrent sentences.
After unsuccessfully challenging her conviction on direct appeal, defendant filed a petition in the Law Division for post-conviction relief ("PCR"). Among other things, defendant contended that: (1) her trial counsel was ineffective in numerous respects; (2) the State's witnesses committed perjury; (3) the trial judge was biased against her trial counsel; (4) the State violated the precepts of Brady v. Maryland*fn1 during pretrial discovery; and (5) her appellate counsel was ineffective. Defendant also sought PCR relief based upon alleged newly-discovered evidence. At the conclusion of the PCR hearing, the trial court denied defendant's application.
Defendant now appeals, contending that her PCR claims have merit and that the trial court erred by not conducting a full evidentiary hearing. We affirm.
We need not recite the underlying facts at length, in light of the discrete issues raised in this PCR appeal. The following brief summary will suffice.
The State's proofs showed that defendant persuaded her former boyfriend, Richard DeBow, to shoot and kill her husband Joseph on April 16, 2000 at her mother's residence in Atlantic County. At the time of the homicide, defendant and Joseph were separated and divorce proceedings between them were pending. That evening, accompanied by his girlfriend Susan McChesney, Joseph drove to his mother-in-law's residence to drop off the parties' children, who had been with him that day. Defendant met Joseph when he arrived and immediately asked him to come to the rear of the premises and check on an alleged problem with her Ford Explorer's transmission. After Joseph went into the garage to collect some tools, he was fatally shot four times in the chest by DeBow with a.22 caliber revolver. DeBow then drove away in the Explorer, which had a single key in the ignition left there by defendant.
Three days after the shooting, DeBow was apprehended. He confessed to killing Joseph, stating that defendant had planned the murder with him and that she had provided him with the.22 revolver used in the shooting.
The State's proofs further showed that, at the time of the murder, defendant for several months had been in an ongoing extra-marital relationship with another man, Steven Ferman. In the fall of 1999, defendant showed Ferman a handgun that she had allegedly obtained from an aunt in South Carolina. According to the State's proofs, defendant had developed an obsession with Ferman's wife, Carrie. Defendant planned to have Carrie killed, and she had discussed those plans with Ferman.
After Joseph's shooting, Ferman admitted in a police interview that he was aware of defendant's involvement in the murder, and that defendant had talked about killing her husband on several prior occasions. Ferman also acknowledged that he and defendant previously had stolen computer equipment together from the offices of his federal employer.
Ferman agreed to cooperate with the police and to speak with defendant wearing a hidden recording device. Ferman spoke several times with defendant and recorded various incriminating statements by her acknowledging that she knew that DeBow had shot her husband, that the murder weapon had been disposed of, and that she had burned the weapon's gun case in a wood stove.
Defendant was subsequently arrested. When she thereafter encountered DeBow at the prosecutor's office, DeBow spontaneously stated to her that they were "going up the river together," to which defendant replied, "I told you to keep your mouth shut and don't say a f**king thing."
A grand jury charged defendant with the first-degree murder of Joseph; two separate first-degree conspiracies to murder, respectively, Joseph and Carrie Ferman; second-degree possession of a weapon for an unlawful purpose; third-degree unlawful possession of a weapon; and third-degree receipt of stolen property.
The State presented thirty-one witnesses at trial, including DeBow, Ferman, several other fact witnesses, various law enforcement witnesses, and the medical examiner who performed the autopsy on Joseph. The defense presented three witnesses: defendant's mother; a lay witness who had inspected the Explorer after the murder and who allegedly discovered in the vehicle a malfunctioning transmission part; and a police sergeant who had been involved in the investigation. Defendant's mother testified that she had been with defendant "on and off" at defendant's house the entire day of April 16. She denied ever seeing DeBow that day. The mother also disputed that defendant had an aunt who could have given her a handgun. Defendant elected not to testify.
The jury returned a guilty verdict on all counts on the same day it received the jury charge. At sentencing, the court imposed life imprisonment on defendant for her role in Joseph's murder, with a mandatory thirty-year period of parole ineligibility. The court also imposed a concurrent ten-year sentence for defendant's participation in a conspiracy to murder Carrie Ferman, as well as two concurrent four-year sentences for the merged weapons offenses and the receipt of stolen property offense. The aggregate sentence was a life term plus ten years.*fn2
Defendant filed a direct appeal, which was limited to two grounds claiming entitlement to a mistrial: (1) the prosecutor, when examining a witness, had improperly highlighted defendant's pretrial incarceration in the county jail; and (2) a member of the victim's family had been handed a bunch of flowers in the courtroom by an unidentified person in the jury's presence, near the end of the prosecutor's summation. In an unpublished opinion, we rejected both arguments for lack of merit and affirmed defendant's conviction. State v. Gigliotti, No. A-5453-01T1 (App. Div. Oct. 23, 2003). The Supreme Court subsequently denied certification. 179 N.J. 309 (2004).
Upon failing to obtain relief on direct appeal, defendant filed the instant PCR application in the Law Division in June 2008. The PCR was considered by the same judge who had presided over defendant's trial. After hearing oral argument, the judge rejected defendant's application, finding that no evidentiary hearing in the matter was necessary. In the course of his oral ruling, the trial judge rejected each of the contentions of error raised by defendant, both singularly and cumulatively. The judge also commented on the strength of the State's proofs, particularly describing as "most damning" the "recorded interaction between  defendant and Ferman" that had occurred after Joseph's murder.
This appeal ensued. Defendant raises the following points:
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM THAT HER SIXTH AMENDMENT RIGHTS TO CONFRONTATION AND COMPULSORY PROCESS, AND HER FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, WERE VIOLATED WHEN TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE, AND THE TRIAL COURT FAILED TO ADEQUATELY PROTECT, THE DEFENDANT'S RIGHT TO TESTIFY; AND BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM THAT HER FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE STATE'S FAILURE TO PROVIDE DISCOVERY, THE PERJURY COMMITTED BY THE STATE'S WITNESSES, AND BY THE TRIAL COURT'S DENIGRATION OF DEFENSE COUNSEL.
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM THAT SHE WAS ENTITLED TO A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE. POINT III
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION; TRIAL COUNSEL'S FAILURE TO ADEQUATELY ADVISE THE DEFENDANT OF THE ADVANTAGES AND/OR DISADVANTAGES OF NOT TESTIFYING; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE RECORDED CONVERSATIONS ON STATE V. DRIVER GROUNDS; TRIAL COUNSEL'S FAILURE TO REQUEST A CHARGE ON LESSER INCLUDED OFFENSES; AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S FINDINGS AT SENTENCING; SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR  INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON DIRECT APPEAL.
THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN [HER] PETITION FOR POST-CONVICTION RELIEF.
THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN [HER] PETITION FOR POST-CONVICTION RELIEF.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.
We have carefully considered each of the points that defendant raises in her brief, and we find that none of them warrant either a reversal of her conviction or an evidentiary hearing before the PCR judge. We examine them in turn.
Defendant principally contends that her prior attorneys in this case failed in various respects to provide her with the effective assistance of counsel. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." State v. Castagna, 187 N.J. 293, 314 (2006).
In this regard, "[t]he quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." Ibid. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantees of [a] fair trial.'" Castagna, supra, 187 N.J. at 314-15 (emphasis in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
With these standards in mind, we turn to defendant's specific contentions of ineffectiveness. In particular, defendant contends that her trial counsel was ineffective by (1) failing to discuss with her sufficiently the advantages and disadvantages of testifying; (2) failing to conduct an adequate pretrial investigation; (3) conceding the admissibility of the tape-recorded statements between defendant and Ferman; (4) failing to request charges on lesser-included offenses; (5) failing to communicate a plea offer to her or advise her sufficiently about the risks of going to trial; and (6) failing to object to inappropriate aggravating factors at sentencing. All of these contentions lack merit.
We begin with the issue of defendant's election not to testify. The record indicates that at the conclusion of the State's case, defendant's trial counsel asked the court for extra time to confer with defendant. The court granted that request. The following day, the trial judge specifically addressed defendant and her trial attorney to confirm that she had elected not to testify and that she was amenable to the customary jury charge that the jury draw no adverse inference from her exercising her right not to testify. In colloquy with the court, trial counsel asserted that he had explained the subject to his client and that he requested the no-inference charge. The judge then turned to defendant herself, who told the court that she also requested the charge.
There is nothing in the record to support defendant's present claim that she received inadequate legal advice regarding her testimonial waiver. Moreover, the trial court is not required to explain to a criminal defendant the consequences of choosing not to testify. State v. Savage, 120 N.J. 594, 630 (1990).
Defendant next maintains that her trial counsel failed to investigate the case properly. Her vague assertion is supported by no specifics detailing exactly what factual leads or other potentially exonerating proofs her attorney did not investigate. Such generalizations do not satisfy the law. R. 3:22-8, see also State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.) (stating that a "petition for post-conviction relief must... set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought") (emphasis added), certif. denied, 162 N.J. 199 (1999). To the extent that defendant may be alluding to the alleged newly-discovered proofs described in Part II(B) of this opinion, infra, we are satisfied that no actual prejudice flowed from the failure to adduce such proofs sooner.
Defendant additionally faults her trial counsel for failing to object to the evidentiary admission of statements that were obtained through Ferman's recording device. She asserts that her trial counsel should have objected to the recordings, because of their sub-optimal sound quality, pursuant to State v. Driver, 38 N.J. 255 (1962). The record shows, however, that trial counsel*fn3 did object, albeit unsuccessfully, to the admission of the tapes for lack of audibility at least once at a pretrial hearing on March 11, 2002. Moreover, even if trial counsel failed to object, we are satisfied that the trial court reasonably found that the tapes met the various audibility requirements of Driver, supra, 38 N.J. at 287-88.
The trial court heard testimony from the officers involved in the surreptitious recording. The court also heard directly from Ferman regarding the statements made by defendant. This testimony established that the recording was authentic and probative, despite the inaudible portions of the tape. See State v. Cusmano, 274 N.J. Super. 496, 512-13 (App. Div. 1994) (reaffirming that the court has discretion to admit a recording that, in part, supplies probative evidence, even where the recording is partially inaudible); see also State v. Dye, 60 N.J. 518, 531 (1972). In addition, the testimony directly established that no additions or deletions were made to the recordings; a position that defendant failed to controvert with adequate competing proof. Lastly, there was no proof that defendant was coerced to make the taped statements.
Next, defendant claims her trial attorney was ineffective in failing to request jury instructions on lesser-included offenses. She contends that her counsel should have urged the trial judge to include in the final jury charge the elements of lesser-included manslaughter offenses, in addition to murder. The trial judge soundly rejected this contention at the PCR hearing, and so do we. The record bespeaks the repetitive shooting of an ambushed spouse that was planned and premeditated, not a killing that was reckless or in the heat of passion caused by reasonable provocation. See N.J.S.A. 2C:11-4 (defining the various forms of manslaughter). The proofs here do not "clearly indicate" a rational basis for the jury to have convicted defendant of any of the categories of manslaughter in lieu of murder. See State v. Jenkins, 178 N.J. 347, 361 (2004) (reaffirming that lesser-included jury charges are not required unless they are "clearly indicated" by the trial proofs); see also State v. Brent, 137 N.J. 107, 117 (1994) (requiring defendant to demonstrate a rational basis for acquittal on the greater charge and for conviction on the lesser charge).
As another theory of ineffectiveness, defendant argues that her trial attorney should have objected to certain aggravating factors cited by the trial judge at sentencing. Defendant specifically complains that the judge twice wrongfully characterized her in his sentencing colloquy as "evil." We discern no undue prejudice in that characterization that warrants intervention. The judge used the term in connection with his assessment of deterrence and the risk that defendant would commit another offense if she were not severely punished. See N.J.S.A. 2C:44-1(a)(3) and (9) (aggravating factors reflecting the risk of reoffense and the need for deterrence). In that context, the judge also noted that defendant has been remorseless, that she was the "primary culprit in the murder of one victim, and [in] a plan to murder another person." The judge also appropriately noted defendant's prior criminal record. Given this context, trial counsel did not lapse under the Strickland/Fritz criteria in failing to object to the judge's characterization. Nor did the lack of counsel's objection materially affect the sentencing outcome. The sentence was entirely appropriate under the circumstances. State v. Roth, 95 N.J. 334, 365 (1984).
Defendant also maintained in her pro se PCR petition that her trial counsel was ineffective in failing to communicate any plea offer to her and the consequences of not plea bargaining. The trial judge rejected that claim, pointedly finding it contrary to his own first-hand observations of trial counsel's performance and defendant's antipathy to entering a guilty plea of any kind:
I would suggest that on a number of occasions both the defendant petitioner and her counsel and the prosecutor were present in court through the status conference, through the pretrial conference process, and there's a lot on the record, were the transcripts to be procured of this, which would refute those allegations subject to this. It is my pretty clear recollection that the defendant was interested in no plea whatsoever. As a consequence, there was no plea offer, as a consequence, there was nothing to reject.
Defendant claims that, notwithstanding the court's perception that she was firmly opposed to entering a guilty plea, her trial attorney should have done more to encourage her to do so and counseled her better about the risks of going to trial. This argument is entirely speculative, and is not supported by any details in defendant's supporting certification with her PCR application. Given that dearth of support, we affirm the trial court's disposition on this issue. See also State v. Tacetta, 200 N.J. 183 (2009) (finding PCR relief unwarranted where defendant alleged, without sufficient justification, that his trial counsel failed to give him adequate advice about a plea agreement).
Lastly, we discern no ineffectiveness in the advocacy of defendant's original appellate counsel for failing to raise additional issues on the direct appeal. The evidence of guilt in this case--strongly corroborated by DeBow as defendant's co-conspirator, by the testimony of Ferman recounting defendant's long-standing homicidal desires, and by the physical proofs--is so overwhelming that appellate counsel cannot be fairly criticized for limiting the direct appeal to two discrete issues instead of taking a scattershot approach. In any event, none of the points that defendant now argues through her PCR application should have been raised on direct appeal is demonstrably meritorious, so there is no actual prejudice as required under Strickland/Fritz.
Defendant argues that the trial court inadequately considered alleged newly-discovered evidence that she believes could have led to her acquittal. In particular, defendant relies upon a post-trial letter dated May 3, 2006 written by her older son, who was thirteen at the time of trial in 2002. The son's letter, which he certified to be truthful, contends in pertinent part that his father, Joseph, did not return the children until after 7:00 p.m. on the night of the shooting because McChesney was late with dinner that evening and also because his father was "never on time." The son adds that his mother "never asked for us to be returned at a certain time."
Defendant offered the son's letter in an effort to rebut McChesney's trial testimony that defendant had specifically requested Joseph to drop the children off at her mother's at 8:00 p.m. that evening rather than at 7:00 p.m. Defendant also presented in her PCR application a copy of a telephone bill entry showing a 7:57 p.m. phone call placed on Joseph's line to the residence of defendant's mother, which she contends is counterproof that Joseph was running late and that he or McChesney called the house to report their delay in arriving. Finally, defendant presents various e-mail exchanges involving Ferman that she contends show that Ferman tried to manufacture evidence against her.
The trial judge justifiably rejected defendant's reliance on these alleged newly-discovered proofs. The judge found that the proofs did not "materially impact the outcome" in the case. In addition, the proofs were discoverable by reasonable diligence before trial. See State v. Ways, 180 N.J. 171, 187 (2004) (requiring, among other things, that defendant seeking a new trial based on newly-discovered evidence prove that the proofs were not previously discoverable through reasonable diligence, and that they would have "probably" changed the outcome if they had been presented to the jury).
Even if Joseph and McChesney had their own reasons for delaying in returning the children on the evening of the shooting, that does not disprove the testimony of McChesney and DeBow that defendant had asked Joseph to not arrive at 7:00 p.m. Additionally, the 7:57 p.m. call, whoever made it and received it, does not disprove that defendant asked Joseph to arrive at or around 8:00 p.m. Nor do the e-mails involving Ferman have any appreciable exonerating significance. We affirm the trial court's determination rejecting defendant's newly-discovered evidence claim.
Defendant additionally contends that the prosecutor violated the Brady doctrine in withholding certain evidence before trial and that the court should have granted her a new trial on this basis at her PCR hearing. In particular, defendant contends during her trial counsel's cross-examination of police Detective McFadden, McFadden indicated that DeBow had given information "regarding his location and who was present when [defendant] gave him the weapon and that this information was never revealed to the defense." The respective counsel then approached the bench, at which time the State disclosed that DeBow had previously advised police that he was hiding in defendant's closet on the day of the murder, at a time when defendant's mother came to defendant's house. Defendant's trial counsel requested a mistrial, which was denied. According to the colloquy, the State had not planned on utilizing this information at trial to support defendant's guilt. The State also indicated that the defense never informed the State--and still had not informed the State at the time of this colloquy-- that they planned on calling defendant's mother as a witness.
Following the sidebar discussion, defendant's trial counsel asked McFadden if DeBow had ever disclosed that on the day of the murder, he had hid in defendant's closet when defendant's mother came to her house. McFadden responded in the negative. Thus, it was the defense, and not the State, that brought out this testimony before the jury.
It is significant that defense counsel failed to disclose the nature of the testimony to be proffered at trial by defendant's mother. See R. 3:13-3(d)(3) (requiring the defense to disclose the "names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements" (emphasis added); see also State v. Montaque, 55 N.J. 387 (1970).
Defendant also does not controvert that she and her counsel had knowledge of DeBow's assertion that he was with defendant the entire day of the murder. Although the prosecutor did inquire into this issue while cross-examining defendant's mother, the State simply tried to establish that the defense had such prior knowledge of DeBow's assertion that he was in defendant's house the day of the murder at least a "year" prior to trial just not the specific whereabouts therein.
Upon considering these Brady issues at the PCR hearing, the trial judge provided the following analysis:
With respect to the alleged Brady violation, simply information came to the attention of the prosecutor pending the trial of the case which was disclosed in an appropriate period of time for the defense counsel to react or do what he chose. It dealt with Richard DeBow, the co-defendant, telling the interviewer he was hiding in the bedroom when the [defendant's] mother came over to the house. She [defendant's mother] was free to testify as to what she knew, and she did, and he was free to testify as to what he did and knew, and he did, and ultimately, fact questions were resolved by the jury. [(Emphasis added).]
We concur with the judge's conclusion that defendant has not demonstrated a Brady violation. Moreover, even if we were persuaded that the State should have disclosed DeBow's statement about hiding in the closet sooner, that earlier disclosure is not "likely to have affected the verdict." State v. Reddish, 181 N.J. 553, 640 (2004). We affirm the trial judge's conclusion that no new trial is warranted on this ground.
We have fully considered the balance of defendant's contentions, including her claims that various prosecution witnesses committed perjury, that the trial judge was unfairly biased against defense counsel because the judge, in the jury's presence, requested counsel to stand up when addressing the court; and the other various points raised on this appeal. None of those points have sufficient merit to be addressed in this written opinion or warrant PCR relief. R. 2:11-3(e)(2). Moreover, we discern no reason for the trial judge to have conducted an evidentiary hearing on any of the PCR issues, given the strength of the State's proofs of guilt and the unpersuasive tenor of defendant's PCR arguments. State v. Preciose, 129 N.J. 451, 462-64 (1992).
The trial court's dismissal of defendant's PCR application is affirmed.