On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 96-07-0997.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges Stern and Sabatino.
Defendant appeals from an order of June 22, 2007, denying his petition for post conviction relief (PCR) without an evidentiary hearing. He claims that his felony murder conviction must be reversed due to the ineffective assistance of trial counsel or that he is entitled to an evidentiary hearing to prove counsel was ineffective and that he is also entitled to an evidentiary hearing on his claim that he did not knowingly and voluntarily waive his right to testify on his own behalf.
We affirmed the felony murder conviction and fifty-year sentence with thirty years before parole eligibility with additional mergers into the felony murder. See State v. Pantusco, 330 N.J. Super. 424 (App. Div.), certif. denied, 165 N.J. 527 (2000). Our holding in Pantusco--that the convictions, which were not the first felony that set into motion the murder, would merge with the felony murder conviction--was subsequently overruled in State v. Hill, 182 N.J. 532, 548 (2005), but the State has never sought to remedy that holding in this case. We subsequently affirmed the denial of defendant's first PCR petition based on the ineffective assistance of counsel for failing to pursue a lesser-included manslaughter by eluding charge. However, we remanded that matter to permit defendant to assert new claims as part of his first petition for PCR. We now review the denial of those claims.
Defendant contends that defense counsel's concessions of guilt in the opening statement constituted ineffective assistance of counsel and thereby mandates a reversal of his felony murder conviction. In the alternative, defendant argues he is entitled to an evidentiary hearing on the issue. In response, the State asserts that "defense counsel's concessions . . . cannot be deemed to be ineffective assistance of counsel" because defense counsel never conceded the predicate felony to felony murder, defense counsel's concessions were made for tactical reasons, and that such a concession is not the same as a guilty plea and does not require defendant's consent. The PCR court concluded that defense counsel's concession was "a tactical move" and did not rise to the level of ineffective assistance of counsel.
It is, of course, well established that a person accused of crimes is guaranteed the effective assistance of counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). 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 defense of the accused. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; State v. Fritz, supra, 105 N.J. at 58. A defendant is only entitled to an evidentiary hearing on whether he was effectively represented by counsel when there are relevant matters outside the trial record and a prima facie claim of ineffective assistance has been established. See State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the likelihood of succeeding under the Strickland test, State v. Preciose, supra, 129 N.J. at 462, but in so doing, courts should view the facts in the light most favorable to a defendant. Ibid.
In assessing the first prong of the Strickland test, a court must determine whether "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). 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. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)). "Thus, an 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." Castagna, supra, 187 N.J. at 314 (citing State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983)). "[S]trategic 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 guarantee of [a] fair trial.'" Id. at 315 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991).
In assessing the second prong of the Strickland test, courts must determine if defendant has shown that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. "It is not enough for the defendant to show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).
Therefore, in order for defendant here to sustain a claim of ineffective assistance of counsel, defendant must demonstrate an objectively deficient performance and that the deficient performance caused such prejudice to the defendant that it is reasonably probable that the result would be altered. In other words, we must have no confidence in the result. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Defense counsel said the following in his opening statement:
This was a terrible day, a tragic day, a sad day. You're going to find Patrick Pantusco guilty of the car theft, and you're going to find Patrick Pantusco guilty of these person [sic] snatchings because he indeed was the person who did these purse snatchings, but I'm going to tell you now, Patrick Pantusco is not guilty of felony murder. And Judge Sullivan is going to talk to you about the meaning of felony murder and what felony murder is. And you're not going to find Patrick Pantusco guilty of aggravated manslaughter.
At the end of the opening statement, defense counsel continued by stating "The State has a heavy burden, and what we're saying here is Patrick Pantusco is not guilty of felony murder. He's not guilty of aggravated manslaughter. If he's guilty of anything, its manslaughter, of being reckless."
Defense counsel started his summation by acknowledging defendant "broke into and stole a Jeep Explorer," thereby "burglar[izing] that vehicle." He did not acknowledge an intent to steal the credit cards in the Jeep, but did acknowledge he "snatch[ed]" the purses of three women at three different locations, and continued:
How did he commit those purse snatches? And I use that term advisedly, ladies and gentlemen, because you will remember that despite the fact that the police officers took the stand and kept talking about, now 17 months later, these robberies, you heard the broadcast, the radio broadcast that day, and they all referred to the term purse snatches. You know that Detective Kevin Smith of Paramus Police Department used the term purse snatch in his written report and admitted as such. So everyone that day was dealing with a purse snatch. The judge will charge you with respect to the law on that and you'll listen carefully because the degree of force necessary to effectuate a purse snatch may be the difference in some of these cases between a robbery and a purse snatch.
He took these purses but not with a gun or a knife as you may have traditionally have thought of robbery -- not with a gun or a knife. He did it with a kind word, with politeness, with deception and with stealth. Now does that make him a Boy Scout? No, it does not, clearly it does not. But it does mean that there's a difference between that and a robbery. (Emphasis added).
Defense counsel further stated that defendant was driving his car "recklessly," but it wasn't during a "flight" from a robbery even if there was a robbery. He continued:
Now had he been fleeing from a stolen car would that have been murder and Stephanie Carol died? No, no, not murder. Suppose he had been distributing drugs and he fled and Stephanie Carol died, would that be murder? No, you couldn't charge murder then, no. Well suppose he pointed a gun at someone and threatened them because he didn't like them and then put that gun in his pocket and he drove away and he killed Stephanie Carol, would that be murder? No. It has to be specific crimes, in this case robbery. So you can see how the exact same situation, someone fleeing from a crime, the exact same thing happening, it's not murder. They couldn't even charge murder, it wouldn't even come close to being murder. Why is it here? Just because the crime is whether it's a purse snatch or a robbery. If it's a robbery it suddenly becomes murder where it really is just this terrible accident. It's an artificial creation. But this artificial creation has very specific rules before you can invoke this artificial creation instead of what this really is, someone driving a car recklessly and causing the senseless death of another, because that's what really happened here. (Emphasis added).
Finally, counsel emphasized that the State had to prove an "immediate flight from the crime of robbery" to have a felony murder based on robbery and stated that defendant "may have been fleeing from arrest but that's not in immediate flight from the robbery." He further stated there was a break between the offenses and the chase, and that defendant was even not guilty of aggravated manslaughter, while operating the vehicle "recklessly," because there was no "extreme indifference to the value of human life." He planted the seed for a verdict of guilt on "vehicular homicide" because he told the jury that defendant "operated his vehicle recklessly and that he killed" the victim, and that defendant will be punished, but "this 22 year old boy" was not a "killer" and not guilty of "murder."
The statements in counsel's opening statement do concede defendant's guilt of the purse snatchings, but his summation demonstrates that the purpose of the concession was to emphasize the difference between a purse snatching and a robbery. In context, counsel's obvious strategy was to avoid a conviction of a predicate felony necessary for a felony murder conviction. Thus, defendant's present attack is on the type of "strategy" which cannot give rise to a claim of ineffective assistance of counsel. See e.g., State v. Fritz, supra, 105 N.J. at 54. Even if the opening statement was not sufficiently clear to the jury that the concession was to theft only, as opposed to robbery, the summation occurring just before the final charge made that clear.
The fact there was no concession of participation in a robbery is critical, because such a concession in this case where a fatality ensued would be an admission of felony murder. See State v. Harrington, 310 N.J. Super. 272, 281-82 (App. Div.), certif. denied, 156 N.J. 387 (1998) (where the "defense counsel expressly 'concede[d] that [defendant] was guilty of [the underlying] robbery'" and counsel "apparently attempted to retract his earlier concession" when he realized its impact on the felony murder charge). Given the anticipated final instructions, here the concession focused the jury on returning a verdict for lesser included thefts by purse snatchings that did not include all the elements of robbery, the predicate for a felony murder conviction and its required sentence of thirty years before parole eligibility.*fn1 It is significant to note that the judge charged the jury on lesser included theft offenses on counts ten, twelve, and thirteen. See also State v. Sheika, supra, 337 N.J. Super. at 242, where we were "satisfied that counsel's concession [of robbery] constituted a reasonable strategy in light of the evidence presented" concerning the cause of the victim's death. As in Sheika, "counsel's concession here was part of a carefully crafted defense designed to result in an acquittal of the felony murder count." Id. at 243.
The defense strategy, although unsuccessful, was sound. It had some prospect of success because defendant conceded wrongdoing in a case involving the death of an innocent woman as a result of a chain of events started by defendant's conduct. But it left the jury the option of convicting him of certain crimes, including lesser included offenses, without convicting him of felony murder.
However, defendant further contends that defense counsel's concession required defendant's consent because the concession effectively functioned as a guilty plea. He states "[t]he decision to plead guilty or not guilty is reserved solely for the accused" and that counsel "may not stipulate to facts which amount to the functional equivalent of a guilty plea without the knowing and voluntary consent of the client." Those propositions seem fundamental. But, as already noted, here the concession was not to robbery or to felony murder. It was made to avoid a conviction for those more serious offenses.
We agree with the PCR judge's reliance on Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed. 2d 565 (2004), a capital case, which involved a "defense counsel's strategic decision to concede, at the guilt phase of the trial, the defendant's commission of murder, and to concentrate the defense on establishing at the penalty phase, cause for sparing the defendant's life." Id. at 178, 125 S.Ct. at 555, 160 L.Ed. 2d at 572. The Court held that defense counsel must consider both the guilt and penalty phases in determining how to proceed in a capital case; however, Justice Ginsburg wrote that when "counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest and the defendant is unresponsive, counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent." Id. at 192, 125 ...