April 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERARD VERRICO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-3976.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 6, 2010
Before Judges Cuff, Payne and Miniman.
Following a jury trial, defendant, Gerard Verrico, was found guilty of third-degree criminal restraint, N.J.S.A. 2C:13-2 as a lesser-included offense within first-degree kidnapping N.J.S.A. 2C:13-1b (Count One);*fn1 first-degree aggravated sexual assault by fellatio, N.J.S.A. 2C:14-2a(4) (Count Two); first-degree aggravated sexual assault by vaginal penetration, N.J.S.A. 2C:14-2a(4) (Count Three);*fn2 third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Four); fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (Count Five); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Six). He was given concurrent fifteen-year sentences on the first-degree aggravated sexual assault convictions, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and lesser sentences for criminal restraint and unlawful possession of a weapon. The remaining convictions were merged. Defendant was additionally sentenced as a sex offender to community supervision for life.
On direct appeal, we reversed the conviction for first-degree aggravated sexual assault by vaginal penetration and for third-degree terroristic threats as the result of inadequate jury instructions. State v. Verrico, No. A-5046-04 (App. Div. May 17, 2007). Certification was denied. State v. Verrico, 192 N.J. 478 (2007).
Defendant then moved for post-conviction relief (PCR). In an amended petition filed by counsel, defendant argued (1) ineffective assistance of trial counsel in failing to request a N.J.R.E. 404(b) limiting instruction in connection with evidence of defendant's illegal drug use both prior to and in and around the time of the offenses charged; (2) ineffective assistance of appellate counsel in failing to assert error in the absence of the limiting instruction; (3) ineffective assistance of trial counsel in failing to object to statements by the prosecutor in closing regarding defendant's drug use as it related to his marital status and to obtain a curative instruction or mistrial; (4) ineffective assistance of trial counsel in failing to call three character witness, politician Carmen Orecchio and friends Douglas Johnson and Harold Schnack; and (5) ineffective assistance of trial counsel in failing to retain and call an expert to testify that defendant was suffering from withdrawal symptoms at the time of his confession, and that the confession was thus involuntarily given. The PCR judge denied PCR without a hearing. The present appeal followed.
On appeal, defendant presents the following arguments:
I. DEFENDANT WAS DENIED A FAIR TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO EVIDENCE OF DEFENDANT'S CHRONIC DRUG ABUSE OR REQUEST A LIMITING INSTRUCTION ON THE PERMISSIBLE AND IMPERMISSIBLE USES OF SUCH EVIDENCE AND THE TRIAL COURT FAILED TO GIVE SUCH AN INSTRUCTION ON ITS OWN MOTION AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THAT BASIS.
II. DEFENDANT WAS DENIED A FAIR TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION AND HIS APPELLATE COUNSEL FAILED TO RAISE THE PROSECUTOR'S IMPROPER COMMENTS AS ERROR ON APPEAL AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THAT BASIS.
III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO CALL AS WITNESSES SEVERAL REPUTABLE FRIENDS OF THE DEFENDANT WHO WERE WILLING AND AVAILABLE TO TESTIFY AS CHARACTER WITNESSES ON DEFENDANT'S BEHALF AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THAT BASIS.
IV. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL COUNSEL'S FAILURE TO RETAIN AND PRESENT AN EXPERT WITNESS CASTING DOUBT ON THE VOLUNTARINESS OF DEFENDANT'S STATEMENT AND THE REQUISITE KNOWING AND INTELLIGENT WAIVER BY DEFENDANT OF HIS MIRANDA RIGHTS AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THIS GROUND.
V. THE PCR COURT ABUSED ITS DISCRETION IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON TRIAL COUNSEL'S FAILURES TO CALL CHARACTEER WITNESSES, REQUEST A 404(B) JURY INSTRUCTION AND RETAIN AN EXPERT ON ADDICTION MEDICINE TO ASSIST THE COURT IN REACHING ITS FINDINGS
IN THE JACKSON-DENNO HEARING CONDUCTED BY THE TRIAL COURT PRIOR TO DEFENDANT'S TRIAL.
The record in this matter supports the State's position that, on May 21, 2003, after luring the victim, J.L., to his home with an offer to view defendant's puppies, defendant locked the victim in his bedroom, covered her with tanning lotion, unsuccessfully attempted vaginal intercourse and forced her to perform fellatio on him, while threatening the victim with a knife and uttering threats to kill. During the attack, defendant prevented the victim from telephoning for help by breaking her cell phone. He silenced the victim's screams by cutting or tearing a sleeve from a black shirt and tying the sleeve around the victim's head and mouth.
At the conclusion of the attack, the victim wiped defendant's ejaculate from her body and dressed. Defendant then drove the victim to where she had left her car. The victim was then able to notify the police of what had occurred.
Defendant, who had proceeded to East Orange to purchase cocaine, was contacted by the police and advised that they were looking for him. Defendant returned home, was arrested, and was taken to Nutley Police Headquarters at approximately 1:00 a.m. on May 22.
At approximately 6:30 a.m. on May 22, defendant was interviewed by Police Detective Kenneth Watson in the presence of Narcotics Investigator Agostino Formato and Detective Sergeant Gail Ferrara. After waiving his Miranda*fn3 rights, defendant told the police that he and J.L. had arranged to meet at Clifton Commons on May 21 so that J.L. could obtain cocaine. At the time, the two did not have a dating relationship. Defendant then stated that he and J.L. smoked cocaine together, but when informed that blood and urine tests of the victim taken at the hospital would confirm whether drug use had occurred, defendant admitted that J.L. "didn't do nothing." Defendant denied inviting J.L. to see his puppies, stating that he only had a ten-year-old dog.
Defendant then admitted to having a cocaine addiction, stating that he used the drug for back pain because he was unable to obtain oxycontin. He denied using any drugs since May 21 at around four or five p.m. Defendant admitted that he had sex with J.L., but initially stated that it was consensual. However, after being informed that analysis showed that J.L. had been gagged and that semen was present on a tee shirt,*fn4 defendant confessed, stating: "okay, I did it, it wasn't me, I mean, that's not like me, I became someone else, I did it to her, I'm sorry, I'm sorry." Defendant then gave a signed statement that essentially corroborated the version of events supplied to the police by J.L. In explaining his conduct, defendant stated:
This only happened because I was high. Like I said before, I became somebody else, it was like I was outside myself. My drug problem is five to six grams of cocaine a day, it was pure, I would cook it up myself. I hurt [J.L.] because of my drug problem. I know I hurt her and I was wrong, I never did anything like this before in my life. If I get the chance to clean up I know it will never happen again.
I hurt my back in an accident and I got hooked on pain medication. From there it turned into cocaine.
In a subsequent search of defendant's room pursuant to a warrant, the police confirmed, as J.L. had recounted, that there was a lock on the bathroom door adjoining the bedroom that could have prevented her from leaving the bedroom by that route. The police also found in the middle of the bed a pair of blue sweatpants with stain marks, and in other locations, a knife, a black cloth tied in a circle, tanning lotion, a black long-sleeved tee shirt with one sleeve torn off, a cellular phone antenna, a white T-shirt with possible semen stains on it, and an unsheathed dagger. Additionally, the police found drug paraphernalia in the room.
Subsequent analysis revealed the presence of the victim's saliva on the gag and defendant's semen on the white tee shirt.
Defendant claimed at trial that he and the victim were both drug users and that the oral sex in which they engaged was consensual. He also presented a defense of voluntary intoxication through use of cocaine that was not accepted by the jury. Defendant denied that he had given the police the statement that was marked in evidence, claiming that he signed it without knowledge of its contents and blaming his lack of knowledge on bad eyesight and the fact that he was high on cocaine.
We commence our analysis by setting forth the basic principles applicable to petitions for PCR. Rule 3:22-2 provides that such a petition is cognizable if based upon evidence of (a) a substantial denial in the conviction proceeding of defendant's state or federal constitutional rights; (b) lack of jurisdiction; (c) an unlawful sentence; or (d) any grounds available for collateral attack by habeas corpus or other common-law or statutory remedy. As here, petitions for PCR are often based on claims of ineffective assistance of counsel, resulting in a deprivation of Sixth Amendment rights. Because such ineffective assistance claims often depend on evidence outside the trial record, they generally cannot be raised on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). Nonetheless, a petition for PCR is not a substitute for a direct appeal, Rule 3:22-3, and it does not provide an opportunity to relitigate a case that has already been decided on the merits. R. 3:22-5. See Preciose, supra, 129 N.J. at 459.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and United States v. Chronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987).
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. [Fritz, supra, 105 N.J. at 52 (quoting Strickand, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693).]
As to the first prong, we recognize a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). As to the second, a defendant alleging ineffectiveness must show that there is "'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.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
Defendant first argues on appeal that trial counsel was ineffective in failing to object to evidence of his drug use introduced at trial and failing to request a limiting instruction as to the use of such evidence. Defendant argues as well that appellate counsel was ineffective in failing to raise on appeal the lack of a limiting instruction. We disagree.
The evidence in question consisted of (1) statements in defendant's confession, introduced by the State, that he only committed the sexual assault because he was high, and that he was in a disassociative state when the conduct occurred; (2) testimony by defendant's father that defendant was not himself when on prescription pain medication or illegal drugs; (3) testimony by defendant that he and the victim were both drug addicts, that he supplied the victim with oxycontin and cocaine, and that he and the victim had used drugs heavily on May 21, first at Willowbrook Mall and then later during their sexual encounter; (4) police evidence that drug paraphernalia was found in defendant's bedroom; (5) testimony by defendant that he ingested a considerable quantity of cocaine after learning that the police were looking for him; and (6) further testimony by defendant that he was high when he signed his confession and therefore did not verify its accuracy. This evidence was integral to defendant's defenses that he did not have the requisite mental state to commit the crimes of which he was charged; that the conduct at issue only reflected a consensual sex for drugs transaction; and that his confession was not knowing and voluntary.
That defense counsel made a strategic determination to permit the introduction of evidence of drug use without objection and, indeed, to solicit the majority of it is clear. That counsel's strategy was unsuccessful does not render his representation ineffective. State v. Davis, 116 N.J. 341, 357 (1989); State v. Sheika, 337 N.J. Super. 228, 243 (App. Div. 2001).
Defendant argues additionally that trial counsel should have sought a limiting instruction in connection with this "other crimes" evidence, and that appellate counsel was ineffective in not raising the lack of such an instruction as grounds for a new trial. However, we regard the evidence of drug use produced in this matter in connection with defendant's various defenses to be "part and parcel of the offense being tried or res gestae evidence." See State v. Jenkins, 356 N.J. Super. 413, 429 (App. Div. 2003), aff'd 178 N.J. 347 (2004).
Conduct which is part and parcel of the offense being tried or res gestae evidence is not excludible under N.J.R.E. 404(b). State v. Martini, 131 N.J. 176, 240-42 (1993). Res gestae evidence is used to refer to events surrounding the issue being litigated, or "other events contemporaneously with them." State v.
Long, 173 N.J. 138, 168 (2002) (Stein, [J.], concurring in part, dissenting in part). "In contrast to other-crimes evidence, . . . res gestae evidence relates directly to the crime for which a defendant is being tried, rather than involving a separate crime."
State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001). [Jenkins, supra, 356 N.J. Super. at 429.]
As a consequence, the admissibility of the evidence at issue was not governed by the standards set forth in State v. Cofield, 127 N.J. 328, 338 (1992) in connection with the introduction of other crimes evidence pursuant to N.J.R.E. 404(b). Further, no limiting instruction was necessary. Martini, supra, 131 N.J. at 242.
Additionally, we find no ineffectiveness arising from the failure of trial counsel to object to an argument by the prosecutor that, after defendant separated from his wife, he had "little to do with himself . . . other than in his words, 'get high'" and a further reference to defendant's drug use earlier in the day of the attack. The references were brief in nature and did little more than comment accurately on testimony that defendant, himself, had provided. In our view, the comments were not so egregious that they deprived defendant of a fair trial. State v. Koedatich, 112 N.J. 225, 325 (1988), cert. denied sub nom., Koedatich v. New Jersey, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989).
Defendant argues additionally that trial counsel was ineffective in failing to call as character witnesses on defendant's behalf politician Carmen Orecchio, and life-long friends Douglas Johnson and Harold Schnack. In connection with defendant's petition for PCR, each has signed a certification attesting to defendant's good character and their availability to testify on his behalf at the time of trial. Significantly, however, the record contains no evidence of any nature that the names of any of the three witnesses were given by defendant to trial counsel or that he was otherwise made aware in a timely fashion of their proposed testimony and their availability. As a result, prima facie evidence of ineffective assistance of counsel has not been demonstrated.
In connection with this petition for PCR, defendant also proffers the certification of Daniel P. Greenfield, M.D., a psychiatrist certified in addiction medicine by the American Society of Addiction Medicine. Dr. Greenfield stated that, if defendant's testimony that he smoked cocaine throughout the day of his arrest and up to the time he was taken into police custody at approximately midnight on May 21, 2003 is accepted as true, when he was questioned six hours later, he was experiencing withdrawal symptoms that would have placed him in a "poor state of mind" to make important decisions. The doctor also stated: "In my opinion, Mr. Verrico's state of withdrawal from cocaine at the time of his statement casts doubt on whether his waivers of his right to remain silent and to an attorney were knowing and intelligent waivers."
Defendant utilizes Dr. Greenfield's certification as support for his claim that trial counsel was ineffective in failing to call an addiction expert such as Dr. Greenfield at the Jackson/Denno*fn5 hearing conducted prior to trial to assist the trial judge in assessing the voluntariness of defendant's statement to the police and whether his waiver of Miranda rights was knowing and intelligent. Defendant argues further that, if such an expert had been called, it is likely that defendant's statement to the police would have been suppressed and that he would not have been convicted by the jury.
The difficulty with this argument, however, is that, at trial, defendant testified that he exercised his Miranda rights by frequently requesting representation, but that his requests were ignored. A factual basis for a claim that defendant failed to comprehend the Miranda warnings or exercise his rights pursuant to them is thus lacking. Moreover, defendant does not explain how testimony akin to that proffered by Dr. Greenfield would have assisted him in connection with his claim that he did not give the confession that the police ascribed to him. As a consequence, we find no ineffectiveness in representation to have been demonstrated.
Having failed to establish prima facie evidence of ineffective representation by trial or appellate counsel, defendant is not entitled to an evidentiary hearing.