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State v. Giordano

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 6, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT F. GIORDANO, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-05-0734.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2010

Before Judges Lisa and Reisner.

Defendant appeals from an order denying his post-conviction relief (PCR) petition. The jury convicted defendant of the single charge in the indictment, first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3, and defendant was sentenced to life imprisonment with a thirty-year parole disqualifier. In an unpublished opinion, we affirmed his conviction and sentence. State v. Giordano, No. A-5836-02 (App. Div. June 29, 2005). The Supreme Court denied defendant's petition for certification on November 10, 2005. State v. Giordano, 185 N.J. 387 (2005).

Defendant then filed his PCR petition. After hearing oral argument on August 28, 2008, Judge Kreizman rendered an oral decision denying the petition without granting an evidentiary hearing. This appeal followed.

In the brief filed by his attorney, defendant argues:

POINT I.

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF TRIAL COUNSEL'S FAILING TO PURSUE A DIMINISHED-CAPACITY DEFENSE.

POINT II.

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, THEREBY MANDATING THAT HIS CONVICTION BE REVERSED.

POINT III.

THE STATE'S USE OF DEFENDANT'S SILENCE VIOLATED HIS STATE LAW RIGHT AGAINST SELF-INCRIMINATION, THEREBY MANDATING THAT HIS CONVICTION BE REVERSED.

POINT IV.

IF THE STATE'S USE OF DEFENDANT'S SILENCE VIOLATED HIS STATE LAW RIGHT AGAINST SELF-INCRIMINATION BUT IS NOT COGNIZABLE VIA A PCR PETITION AS A "FUNDAMENTAL INJUSTICE," THEN INEFFECTIVE ASSISTANCE OF TRIAL AND/OR APPELLATE COUNSEL MANDATES THAT DEFENDANT'S CONVICTION BE REVERSED. (Not Raised Below).

POINT V.

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE PRESENT IN THE COURTROOM DURING A CRITICAL STAGE OF THE TRIAL, THEREBY MANDATING THAT HIS CONVICTION BE REVERSED.

In supplemental pro se brief, defendant further argues:

POINT I.

ADMISSION OF A NON-TESTIFYING EXPERT'S OPINION IN THE STATE'S CASE-IN-CHIEF, ON CROSS-EXAMINATION OF THE DEFENSE EXPERT AND IN THE STATE'S SUMMATION VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION AND TO A FAIR TRIAL.

POINT II.

DUE TO DEFENSE COUNSEL'S INEFFECTIVENESS IN RESPONSE TO A NOTE FROM THE JURY, THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL RIGHTS TO A FAIR AND IMPARTIAL JURY, TO A FAIR TRIAL, AND TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

POINT III.

TRIAL COUNSEL'S INEFFECTIVENESS DURING JURY DELIBERATIONS, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, AN IMPARTIAL JURY AND EFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV.

TRIAL COUNSEL'S FAILURE TO OBJECT TO THE NUMEROUS MISSTATEMENTS OF THE EXPERT TESTIMONY BY THE STATE IN SUMMATION DEPRIVED THE DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE FO COUNSEL AND FAIR TRIAL.

POINT V.

THE STATE'S USE OF DEFENDANT'S SILENCE VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO REMAIN SILENT.

POINT VI.

THE CUMULATIVE EFFECT OF ERRORS AND TRIAL AND APPELLATE COUNSEL'S INEFFECTIVENESS DENIED THE DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL.

We reject these arguments and affirm substantially for the reasons expressed by Judge Kreizman in his comprehensive and well-reasoned oral decision of August 28, 2008.

I.

Defendant killed his girlfriend, Jodi Migliara. He did not dispute that he committed the homicidal act. He contended that the incident resulting in Jodi's death happened quickly and unexpectedly. Defendant said that, in the course of an argument, Jodi kneed him in the groin, which caused him significant pain, as a result of which he lost control and physically attacked her. He urged the jury to find that his conduct constituted only second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), and not knowing or purposeful murder.

The State presented substantial evidence in support of its contention that defendant repeatedly beat and strangled Jodi over a period of up to two days, resulting in her death. The State produced medical evidence demonstrating that Jodi suffered multiple injuries over an extended period of time. This was corroborated by evidence demonstrating the mutilated condition her body. The State also presented other circumstantial evidence supportive of its position that the attacks took place over an extended period of time.

In our prior opinion, we set forth in detail the facts developed at trial, which we now repeat at length:

Defendant was charged with purposeful or knowing murder of his fianceé, Jodi Migliara, in violation of N.J.S.A. 2C:11-3. Defendant acknowledged that he killed Jodi, but asserted that the actions that brought about her death were provoked by her having assaulted him during an argument.

The trial of this matter occurred over the course of eleven days, commencing on January 30, 2003 and ending on February 27, 2003. During the trial, the jury heard considerable evidence about their relationship, and the events that led up to the discovery of Jodi's body in a wooded area in Neptune behind a home where defendant had grown up.

The evidence indicated that Jodi was an outgoing, happy, friendly person, who enjoyed skiing, sailing and exercising. She kept close contact with several friends and was meticulous about her appearance. She owned a condominium in Tinton Falls and worked as a sales representative in the area.

Jodi and defendant met in a restaurant in Red Bank on January 9, 1999. According to the evidence considered by the jury, Jodi's personality and habits changed soon after that meeting. Testimony presented at trial painted a picture of defendant as a controlling person who governed Jodi's every move and communication. For example, Jodi's regular morning telephone calls to her mother tapered off until, by mid-February 1999, she told her mother not to call anymore. Friends found, at about the same time, that it was difficult to keep in touch with Jodi. She told one friend to be careful about what she communicated to her by computer because defendant read her emails. Numerous other instances and examples were testified to by friends and family.*fn1 Jodi explained to her friends and family that the fact that defendant was always in her company or, if not, constantly telephoning her cellphone, was because he just "cared so much for her, he wanted to be there for her."

Sometime in February, Jodi and defendant agreed to marry and it was also agreed that defendant would move into Jodi's condominium.

On Sunday afternoon, March 7, 1999, defendant moved his belongings into Jodi's condominium. Heidi Dotzenrod, who rented a bedroom within Jodi's condominium unit, observed that after defendant's things were moved in that he and Jodi went out but returned at approximately 6:00 p.m. Jodi and defendant walked into Jodi's bedroom and closed the door. Later, Heidi thought she heard either defendant or Jodi doing laundry but heard nothing unusual the rest of the evening. Jodi's father also spoke to Jodi by telephone that evening about measurements for a rug that he wanted to give her for the condominium.

From that Sunday evening until Jodi was found dead on the morning of Tuesday, March 9, 1999, she was exclusively in defendant's company, as defendant acknowledged.

Heidi woke up on Monday morning, March 8, and left for work at 6:45 a.m. While Jodi normally woke at about the same time, Heidi did not hear Jodi's alarm clock, and neither Jodi nor defendant had come out of Jodi's bedroom by the time Heidi left for work. Heidi noticed that both Jodi's and defendant's cars were still parked in the lot when she left.

Sometime between 8:00 a.m. and 10:00 a.m. Monday morning, Jodi telephoned her supervisor at work and told him that she was too ill to work that day. Gary Bariletto, her supervisor, testified that she sounded "very distraught," that her voice was very subdued and sounded as if she were exhausted or had been up all night. She told Bariletto that she believed she was suffering from food poisoning. He asked her to call him that evening to let him know whether she would be able to work on Tuesday. Jodi never called.

Between 10:15 a.m. and 11:30 a.m. on Monday morning, Jodi left a voice mail message for her mother. Brian Dugan was scheduled to work with Jodi on Monday. At about 9:30 a.m., Jodi paged Dugan, alerting him to a message she left for him on a system used by their company, stating that she would not be working with him that day due to food poisoning. She gave some directions as to what needed to be done to fill in. Although Jodi's instructions were clear, her voice sounded drained and weak, as if she had not slept.

Between 11:15 a.m. and 11:30 a.m., another co-employee, Mark Siciliano, left Jodi a voice mail on the company's telephone system. A short time later, Jodi left him a voice mail stating that she had no specific instructions, but asked him to write her store orders and relay them to her using the company's system and not her home telephone. Siciliano left two messages on the company's system on Monday afternoon that Jodi never received.

Defendant did not report to his office on Monday. When he also failed to telephone his office, his co-workers attempted to contact him, repeatedly calling his apartment, his pager, and his parents' home.

That morning, defendant made several telephone calls from Jodi's condominium. On Monday, at 8:29 a.m., defendant called his parents in Wall Township. Between 12:38 p.m.*fn2 and 7:57 p.m., defendant also placed eight telephone calls to his own apartment, explaining during his trial testimony that he was attempting to access his answering machine to retrieve messages. At 4:31 p.m., defendant called his brother-in-law. At some point, defendant also returned to his apartment to pick up mail that had been delivered that morning. At 8:30 p.m., defendant withdrew cash from an ATM machine.

When Heidi Dotzenrod arrived at the condominium on Monday evening, she changed clothes and left, at approximately 6:00 p.m., for the gym. She observed that Jodi's bedroom door was closed, but she did not know whether Jodi or defendant were there, although she had observed their cars in the parking lot. Heidi returned from the gym at approximately 8:00 p.m. with some takeout food. She did not hear Jodi or defendant in the condominium, and she started to eat at the dining room table, but explained that she suddenly felt "uncomfortable" and took the food into her bedroom. As she later prepared to go to bed, she observed that Jodi's bedroom door was still closed. She went to bed at approximately 11:30 p.m., but was awakened at some point during the night by the sound of the door to the condominium closing.

On Tuesday morning, Heidi noticed that Jodi's alarm failed to go off just as the day before. Before going to work, Heidi observed that Jodi's bedroom door was now ajar.

At some time before 9:00 a.m. on Tuesday morning, defendant went to the Holy Innocents Church in Neptune and told the parish secretary at the rectory that he would like to speak to a priest. The parish secretary testified that defendant appeared normal, calm and rational. Defendant was instructed to go to the church and speak to the priest who was then preparing to conduct the 9:00 a.m. Mass, but defendant left without speaking to the priest.

At about 9:00 a.m., defendant arrived at the Neptune Police Station. He approached two officers in the parking lot. One of them, Officer Anthony Gualario, was startled by defendant's appearance and observed scratches on defendant's face and a blank stare. Defendant asked the officers, "Did my mother call about my girlfriend?" The other officer, Officer Christopher Schembri, responded that he was not aware of any such call. Defendant then told the officers that his girlfriend was in the woods, that they had "a fight," and that she might not be breathing. The officers escorted defendant into headquarters and handcuffed him to a bench. While doing so, the officers noticed that defendant had some small, superficial cuts and dried blood on his wrists. Defendant told the officers that he "didn't remember" what had happened.

Police officers were immediately dispatched to the woods at the Jumping Brook Golf Course in Neptune. At an area of the woods near the backyard of a residence where defendant lived during childhood, the police located Jodi. She was lying on her back, with her arms stretched out above her head. Her sweatshirt was bunched up around her neck, and she was wearing sweatpants and sneakers. She was partially covered with a black coat. Leaves, sticks and other debris from the woods were embedded in her hair and face. She was covered with scratches and bruises that were clearly visible to the officers from twenty feet away.

Officer Kerry Duke reached Jodi first and recoiled at the sight of her "totally mutilated" body. Jodi was pronounced dead at the scene by the medical examiner.

When the body arrived at the Medical Examiner's Office for autopsy, Jodi's scalp, hair, face, and left hand were bloody and covered with particles of dirt, leaves, and twigs indicating that she had been dragged though the woods, face down, by her feet. Evidence adduced at trial suggested that rigor mortis did not occur until after the body was deposited in the woods. Jodi's sweatshirt was almost completely off, and she had dragging injuries on her abdominal and lower chest regions. There were a multitude of other visible injuries to the face and head. Jodi's right eye was covered with a bruise that measured three-and-one-half inches in diameter. Her right eyeball was completely ruptured; there was a "blowout" of the globe of her eye. There was a three-quarter inch tear of the skin of her right upper eyelid, where the surface of her skin was torn off. The left side of her forehead was covered with smaller contusions and abrasions. The nasal bones were fractured, and there was a bruise one-inch in diameter at the base of the bridge of her nose. Her right cheek was covered with multiple contusions and abrasions that covered an area three inches in diameter. There were more abrasions, measuring one-inch in diameter, in front of her right ear.

A circular mark appearing on the right side of Jodi's face, near the jaw, as a "thermal injury" or burn mark was also identified. Given its size and circular shape, evidence adduced at trial suggested that the burn mark was probably made with a cigarette. Jodi's entire lower lip was swollen and bruised, and there were three-quarter inch lacerations in the lining of the lip. The inner surface of her upper lip was also bruised, and there was a one-half inch laceration where "her upper lip was torn." There were contusions and abrasions measuring two inches in diameter on the left cheek, and areas of contusions on the right side of her chin measuring two inches in diameter. The undersurface of the jaw was covered with bruises and abrasions.

Jodi's neck was ringed with multiple contusions and abrasions. Some of the contusions had the patterned appearance of objects being driven into her skin as a result of the application of pressure. For example, there were contusions matching the pattern of a necklace, as well as the ribbed pattern on the collar of a sweatshirt she wore. A group of contusions on the left side of the neck measured four inches front to back, and two inches up and down, extending from the front midline to below the ear. The jury also heard that there were three contusions in a linear pattern at the base of Jodi's neck that most likely was [sic] made by the knuckles of an adult fist.

The victim's inner right arm and upper left arm were covered with contusions and abrasions. Her hands and wrists were scraped and bruised. A ligature mark on the right wrist indicated that there was pressure applied to the wrist by a band of some sort.

In addition, Jodi suffered multiple internal injuries. There was extensive hemorrhaging beneath the scalp, in the right frontal region, the right and left parietal and occipital regions, and to the neck. There was deeper hemorrhaging, on the surface of the brain itself, to the subarachnoid layer, on the right and left parietal and occipital lobes, and on the back and lower surfaces.

There were also extensive internal injuries to the neck consistent with strangulation. The hyoid bone, which is located towards the base of the tongue, had areas of hemorrhage. There was also hemorrhaging of the thyroid cartilage located at the level of the Adam's apple. The inner lining of the pharynx near the vocal cord had hemorrhaged. The cricoid cartilage, which is part of the larynx, was fractured, with hemorrhage around that injury. There was also bruising to the tongue.

The jury heard testimony that the multitude of injuries to different areas of the neck indicated that there were different episodes of strangulation in the period before the victim's death. The repeated episodes of strangulation could have resulted in Jodi's losing and regaining of consciousness. Ultimately, however, the cricoid cartilage of the neck was fractured resulting in death from strangulation. The cricoid cartilage is a complete ring and a strong and rigid structure, and only "significant pressure" or "compressive force" can result in a fracture.

The blunt force injuries contributing to Jodi's death included two fractured ribs that punctured her liver, causing it to bleed into her abdominal cavity. According to one expert, since the victim lost almost a unit of blood from the liver indicating active circulation and blood pressure, she was definitely alive when this blow was inflicted, and possibly for as long as forty-eight hours thereafter. Such an injury could result in nausea, vomiting, diffuse abdominal pain, and right-sided chest pain. Another expert who testified was of the opinion that the injury to the liver was sustained a relatively short time before death. And the jury heard expert testimony that the amount of bleeding resulting from the various blunt force injuries indicated that they were inflicted over a prolonged period of time. For example, the jury heard testimony that the blow that ruptured Jodi's right eye was sustained "many hours" prior to death given the "tremendous amount" of bleeding that occurred in the surrounding soft tissues. The swelling to the nose took several hours to occur. In addition, there was a tremendous amount of bleeding to the tongue, resulting in a bruise of almost one inch in diameter, and extensive swelling and bleeding to the lips. One expert opined that these injuries were sustained at least several hours, and as long as a day, prior to death.

In light of this medical evidence, the State contended that defendant battered Jodi over a two-day period and that her death did not result from a spur of the moment loss of control as defendant testified.

According to defendant and his witnesses, he and Jodi had a loving, problem-free relationship up until the moment that she provoked him by kneeing him the groin. Defendant maintained that he and Jodi just happened to be passing by the country club where their wedding was to take place, when Jodi insisted on stopping to view the facility even though it was closed. She then allegedly became angry and exited the car when defendant suggested postponing their wedding. He followed her to effect a reconciliation. According to defendant, Jodi then kneed him in the groin and he momentarily "lost it" and "hit" Jodi. Indeed, he was surprised and upset when he realized that she was dead and pleaded for God's intervention. Defendant claimed that he could not specifically recall strangling Jodi, explaining that "it was a blur," but he agreed that he might have "grabbed" her neck.

[State v. Giordano, supra, slip op. at 1-13.]

II.

Point I of defendant's counsel's brief raises the most significant issue defendant presented in his PCR proceeding, that he was denied the effective assistance of trial counsel because counsel failed to pursue a diminished capacity defense and failed to present an expert to support such a defense.

Defendant contends that he made a prima facie showing of such ineffective assistance and that the judge erred in denying him an evidentiary hearing on the issue. We disagree.

In order to establish a prima facie claim of ineffective assistance of counsel, a defendant must show a reasonable likelihood of success under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984), which was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under this test, the court first looks at whether counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Then, under the second prong of the test, the issue is whether there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Here, a "reasonable probability" is one "sufficient to undermine confidence in the outcome." Ibid.

The first prong of this test is satisfied "by a showing that 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. Chew, 179 N.J. 186, 203 (2004) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L.Ed. 2d at 695). "No 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." Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. Consequently, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. In order to rebut this presumption, a defendant must prove that counsel's actions did not amount to "sound trial strategy." Ibid., 104 S. Ct. at 2065, 80 L.Ed. 2d at 694-95. Courts should "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of the counsel's conduct." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.

Nevertheless, "strategy decisions made after less than complete investigation are subject to closer scrutiny." State v. Savage, 120 N.J. 594, 617-18 (1990). Counsel has a duty to make "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 618 (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). "If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is 'virtually unchallengable.'" Id. at 617 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2065-66, 80 L.Ed. 2d at 695). Still, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Therefore, "when counsel's decision to limit an investigation is supported by 'reasonable professional judgments,' we will not find deficient performance." State v. Martini, 160 N.J. 248, 266 (1999).

In his certification submitted in support of his PCR petition, defendant asserted that "leading up to the underlying incident in this case, [he] had been using a drug called Ephedrine, consuming approximately 100 pills per week."

Defendant stated that he informed his attorney about his drug usage, and that his attorney had thereafter "sent an investigator to a health food store to confirm [his] continued purchases of Ephedrine leading up to the incident to support a diminished capacity defense." In support of his PCR petition, defendant presented the September 5, 2007 report of Dr. Daniel P. Greenfield, a psychiatrist, who opined that such a defense was available based upon defendant's "underlying mental state and psychiatric/neuropsychiatric/addiction medicine condition during the period of time in question." Dr. Greenfield further opined that these afflictions "indicate[d] that [defendant] was not acting in a knowing or purposeful, or intentional way in having the specific idea in mind to kill [Jodi]."

Defendant's trial counsel did not pursue a diminished capacity defense at trial, and did not proffer an expert to support this defense. As we stated, counsel instead advanced a passion/provocation manslaughter theory. Defendant contends that his attorney was deficient by neglecting to have an expert "appraise [his] mental condition and the effect of his Ephedrine abuse on his mental state."

New Jersey's diminished capacity defense provides that "[e]vidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense." N.J.S.A. 2C:4-2; see also State v. Nataluk, 316 N.J. Super. 336, 343 (App. Div. 1998). This defense is therefore only applicable "when defendant has presented evidence of a mental disease or defect that interferes with cognitive ability sufficient to prevent or interfere with the formation of the requisite intent or mens rea." State v. Galloway, 133 N.J. 631, 647 (1993).

"Not every mental disease or defect has relevance to the mental states prescribed by the Code." State v. Breakiron, 108 N.J. 591, 618 n.10 (1987). Indeed, some forms of mental disease, "such as depression or anti-social disorders, have little or no relevance" as to whether a defendant had the ability to form the requisite mental state. Ibid. However, "[o]thers, such as schizophrenia, are clearly relevant." Ibid.

In general, any mental deficiency, including those that cause "a loss of emotional control," can form the basis for a valid diminished capacity defense "if the record shows that experts in the psychological field believe that that kind of mental deficiency can affect a person's cognitive faculties, and the record contains evidence that the claimed deficiency did affect the defendant's cognitive capacity to form the mental state necessary for the commission of the crime." Galloway, supra, 133 N.J. at 647.

After being informed of defendant's Ephedrine usage, defense counsel took investigative steps to corroborate this information. However, counsel did not have defendant evaluated by a mental health expert in order to assess the viability of a diminished capacity defense. The question then becomes whether counsel's failure to obtain such an evaluation and, if favorable, to pursue a diminished capacity defense constituted deficient attorney conduct. If so, the first prong of the Strickland/Fritz test would be met.

Analysis of whether trial counsel acted in a deficient manner or made a reasoned and sound strategic decision in not pursuing this avenue is resolved by reference to a very significant aspect of the pre-trial proceedings. Defendant was indicted on May 1, 2000. On February 20, 2001, the State filed a motion to admit at trial evidence of defendant's prior bad acts pursuant to N.J.R.E. 404(b). The State sought to introduce testimony by three women. Two were defendant's former girlfriends, and the third was his ex-wife. They would testify that defendant acted in a controlling and jealous manner, keeping close tabs on all of their conduct and isolating them from others. The testimony would reveal threatening conduct, including threats to kill. It would also reveal severe physical abuse of the women, including striking and choking. All of this was similar to the conduct the State alleged defendant perpetrated against Jodi in the days immediately preceding her death. This evidence would have been devastating to defendant.

His attorney vigorously opposed the State's motion and succeeded in obtaining a favorable result. The ruling came after several days of testimony, followed by Judge Kreizman's comprehensive written opinion consisting of twenty single-spaced pages.

The State moved for leave to appeal, which was granted on June 26, 2001. The case was assigned to a three-judge panel of this court, which heard argument on October 10, 2001. On August 1, 2002, the panel issued a twenty-five page opinion affirming Judge Kreizman's order denying the State's motion. State v. Giordano, No. A-5727-00 (App. Div. August 1, 2002). On October 3, 2002, the Supreme Court denied the State's motion for leave to appeal. State v. Giordano, No. 53,542 (October 3, 2002).

It is plain to us, as it was to Judge Kreizman in the PCR proceeding, that defendant's trial counsel refrained from further investigating a potential diminished capacity defense, not out of neglect or incompetence, but for a sound strategic reason. Presenting such a defense, if an expert could be obtained who would support it, would have undone counsel's successful effort to prevent the jury from hearing about defendant's controlling and threatening conduct toward and physical abuse of other women.

"Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment . . . and a variety of other tangible and intangible factors." State v. Arthur, 184 N.J. 307, 320-21 (2005). As a result, a court's review of such a decision should be "highly deferential." Id. at 321 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed. 2d at 694). In particular, an attorney will not be found to have been ineffective for failing to present evidence where he or she made a reasonable strategic decision designed "to prevent rebuttal evidence of prior bad acts and other damaging testimony." State v. DiFrisco, 174 N.J. 195, 231 (2002).

If defense counsel had raised a diminished capacity defense at trial, it would have opened the door to the admission of evidence of the prior bad acts we have described. See State v. Eatman, 340 N.J. Super. 295, 299-301 (App. Div.) (holding admissible evidence of defendant's domestic abuse of other women to rebut a diminished capacity claim at a murder trial), certif. denied, 170 N.J. 85 (2001). Defense counsel was certainly aware of this prior conduct, as he opposed introduction of this evidence at a pretrial hearing at which defendant's ex-wife and former girlfriends had testified in this regard. Moreover, defense counsel was aware of the damaging effect of this evidence, having argued at the pretrial hearing that the prejudicial effect of the evidence was "so overpowering" that "once [it] gets in, the jury convicts based on disposition, based on he is a bad guy no matter what the Court said, no matter what the instruction is"; "this evidence is that damning, it is that damaging."

In the report submitted by defendant in support of his PCR petition, Dr. Greenfield relied substantially on defendant's relationship with one of the previous girlfriends whose testimony the State had sought to present. Dr. Greenfield would have certainly been cross-examined about defendant's treatment of her. Further, the State would have certainly countered with its own expert, who would have relied upon the damaging evidence of defendant's prior treatment of several other women with whom he had relationships.

We agree with Judge Kreizman's conclusion that defense counsel's decision not to pursue a possible diminished capacity defense was a calculated strategic decision. It was objectively reasonable to conclude that the benefits of pursuing a diminished capacity defense would have been outweighed by the very substantial prejudice that would result by introduction into the trial of the prior bad acts evidence. It is also significant that defense counsel did not simply forgo a diminished capacity defense and proceed to trial with no meaningful defense strategy. Counsel proceeded with a theory that conformed with defendant's version of the events, namely that defendant reacted spontaneously to Jodi's provocative act of kneeing him in the groin, while in the heat of passion, and without an opportunity to cool off after the act of provocation.

Accordingly, counsel's strategic decision is entitled to the substantial judicial deference it was given here. We therefore agree with Judge Kreizman that the first Strickland prong was not satisfied.

We further agree with the judge's conclusion that the second prong was also not satisfied. This is because Dr. Greenfield's report does not support a diminished capacity defense. The defense does not apply where a defendant's behavior was caused by an intoxicant, rather than an underlying mental deficiency. See State v. Reyes, 140 N.J. 344, 365 (1995). In Reyes, the Court held that the defendant could not establish a diminished capacity defense where he "had been impaired because of emotional rage combined with the voluntary ingestion of intoxicants," but otherwise did not suffer from an underlying mental disorder. Ibid. The Court came to this conclusion despite the fact that the defendant "was possessed of a violent, explosive personality" and might have been suffering from depression, and that the intoxicants "had the effect of making defendant even less able to control his violent emotions." Ibid.; see also N.J.S.A. 2C:2-8c ("Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4 [dealing with 'Responsibility'].").

Dr. Greenfield diagnosed defendant as suffering from dysthymia, which is defined as chronic, mild depression. Taber's Cyclopedic Medical Dictionary 594 (17th ed. 1993). As we have stated, our case law holds that depression is generally irrelevant to one's ability to act knowingly or purposely. Indeed, Dr. Greenfield did not relate defendant's conduct to his mild depression (the mental disease or defect with which he diagnosed defendant), but to his Ephedrine use. Accordingly, defendant failed to establish a prima facie case regarding the second Strickland prong because he failed to present competent medical evidence that would support a diminished capacity defense. Therefore, even if defendant's trial counsel was deficient for failing to have defendant evaluated, defendant has failed to demonstrate prejudice. No diminished capacity defense would have been presented, and the result of the proceeding would have been the same.

III.

Defendant's speedy trial argument, raised in Point II of defendant's counsel's brief, is totally meritless. As thoroughly explained by Judge Kreizman, the reasons for the delay in bringing defendant's case to trial were legitimate and necessary in the context of this case. The delays were occasioned by necessary investigation and motion practice, as well as the interlocutory appeal, which yielded a favorable result for defendant. It was also noteworthy that defendant never asserted his right to a speedy trial and demonstrated no prejudice from the delay. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed. 2d 101, 117 (1972) (setting forth the factors to be considered in determining whether a defendant was deprived of his or her right to a speedy trial, i.e., "[l]ength of delay, the reason for the delay, the defendant's assertion of his [or her] right, and prejudice to the defendant.").

In Points III and IV of defendant's counsel's brief, defendant takes exception to the prosecutor's cross-examination of him during his trial testimony to the effect that when he presented himself at the police department and reported the incident, he did not ask what Jodi's condition was, or whether she was dead or alive. The prosecutor also commented on this subject during summation. Defendant argues that these questions and comments violated his right to remain silent. Judge Kreizman rejected this argument on two grounds. First, he held that it was procedurally barred because it could have been raised on direct appeal. See R. 3:22-4. Further, he held that the questioning and comment regarding defendant's silence "was not improper because it was intended to impeach defendant's credibility through his conduct." Relying on State v. Burt, 59 N.J. 156, 165 (1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed. 2d 735 (1972), the judge reasoned that defendant's testimony that he did not kill Jodi on purpose and that he deeply loved her was belied by his conduct in not inquiring about her condition. Finally, the judge concluded that even if there was an impropriety, it was harmless because these fleeting and relatively innocuous questions and comments could not possibly have affected the outcome of the trial. We agree with the judge's reasoning and conclusion.

In the fifth point raised in defendant's counsel's brief, defendant argues that he was denied his constitutional right to be present in the courtroom during a critical stage of the trial. This occurred when a member of the jury who was pregnant asked to see the judge during deliberations because she was not feeling well. The judge saw her in chambers without counsel or defendant present. The judge then memorialized his discussion on the record in open court in the presence of both counsel, but not defendant. The juror also confirmed her condition and distress. Both counsel agreed that she should be excused and replaced by an alternate, and that is what happened.

On direct appeal, we dealt with the issue, although our opinion is somewhat unclear as to whether we dealt only with the ex parte in-chambers communication between the judge and the juror or also the absence of defendant in the proceeding in open court. Judge Kreizman ruled in the PCR proceeding that the issue was procedurally barred by Rule 3:22-5 because it had been previously adjudicated on direct appeal. We need not determine whether our previous decision indeed disposed of this precise issue because even if there was error it was harmless.

Undoubtedly, whether defendant was present or not, the result would have been the same and the juror would have been excused. The points raised in defendant's pro se supplemental brief do not warrant discussion in a written opinion. R. 2:11- 3(e)(2).

Affirmed.


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