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State v. Donato

October 6, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TRACY E. DONATO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-02-0250.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2010

Before Judges Parrillo, Yannotti and Espinosa.

Defendant Tracy E. Donato appeals from an order entered by the Law Division on January 6, 2009, denying her petition for post conviction relief (PCR). For the reasons that follow, we affirm.

I.

Defendant was charged under Indictment No. 01-02-0250-I, with first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2); third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant was tried before a jury. The evidence presented at trial is summarized in our opinion on defendant's direct appeal. State v. Donato, No. A-5631-02 (App. Div. June 7, 2005) (slip op. at 2-6). As explained therein, the matter arises from the homicide of Gary Tomasik (Tomasik), which occurred on December 25, 2000.

On that date, at about 3:00 a.m., defendant called 911 and reported that her boyfriend "had just walked through the door with a knife through his head." Id. at 2. The police responded to the scene and defendant met them at the door. Ibid. An officer entered the apartment and saw Tomasik's body, naked from the waist down, on the bed, with a knife stuck in the right side of his head and a dried pool of blood in his chest area. Id. at 2-3. Defendant suggested that a person named Stanley Rice (Rice), a man with whom she also was having a relationship, might have committed the offense. Id. at 4.

Defendant agreed to accompany the officers to the police station, where she was placed in an interview room. Defendant gave three taped interviews. Id. at 4-6. In the first interview, defendant stated that, at some point during the night, Tomasik had left the apartment to get cigarettes and returned with a knife in his head. Id. at 4-5. She again stated that Rice should be considered a suspect. Id. at 5.

After the first taped interview, defendant asked the investigators, "[W]hat would people think of me if I did this?" Ibid. At that point, the officers advised defendant of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Donato, supra, No. A-5631-02, slip op. at 5. Defendant agreed to waive her Miranda rights and, in the two subsequent taped statements, acknowledged that she stabbed Tomasik after an argument over sex. Id. at 5-6.

The jury found defendant not guilty of murder and passion/provocation manslaughter, but guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, and the weapons charges. The trial court merged the weapons convictions with the manslaughter conviction and sentenced defendant to twenty-seven years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirmed the convictions and sentence imposed on direct appeal. Donato, supra, No. A-5631-02, slip op. at 19. Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied defendant's petition. State v. Donato, 185 N.J. 266 (2005). Defendant then filed a motion for reconsideration of the denial of her petition. The Court granted the motion and remanded the matter to the trial court for re-sentencing in accordance with State v. Natale, 184 N.J. 458 (2005). See State v. Donato, 185 N.J. 383 (2005).

On remand, the trial court imposed the same sentence. We affirmed. State v. Donato, No. A-6457-05 (App. Div. July 30, 2007). Defendant filed a petition for certification with the Supreme Court, seeking review of our judgment. The Court denied the petition. State v. Donato, 192 N.J. 600 (2007). Thereafter, defendant filed a petition for certiorari with the Supreme Court of the United States. The Court denied the petition. Donato v. New Jersey, 552 U.S. 1268, 128 S.Ct. 1674, 170 L.Ed. 2d 373 (2008).

In August 2006, defendant filed a pro se petition for PCR. Counsel was appointed and on July 1, 2008, filed an amended PCR petition. Defendant alleged that she had been denied the effective assistance of trial and appellate counsel. Judge Michael Donio considered the PCR petition on January 5, 2009 and placed his decision on the record on that date, finding that defendant had not established a basis for PCR. The judge entered an order dated January 6, 2009, denying PCR. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT I: MS. DONATO WAS DEPRIVED [OF THE] EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COURT'S DECISION DENYING HER MOTION TO SUPPRESS.

A. APPELLATE COUNSEL EITHER FAILED TO OBTAIN THE MOTION TO SUPPRESS TRANSCRIPT AND CHALLENGE THE TRIAL COURT'S DECISION DENYING THE MOTION TO SUPPRESS OR RAISE THE SUPPRESSION ISSUE BASED ON THE RECORD PROVIDED.

B. APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT CHALLENGING THE TRIAL COURT'S DENIAL OF MS. DONATO'S MOTION TO SUPPRESS BECAUSE (1) MS. DONATO WAS IN CUSTODY WHEN SHE CONFESSED PRIOR TO BEING INFORMED OF HER RIGHTS UNDER MIRANDA AND (2) THE CONFESSION WAS BASED UPON THE POLICE FABRICATING EVIDENCE.

C. THE COURT ERRED IN THE PROCEDURE AND RESPONSE TO THE JURY QUESTION OF WHAT WAS MORE SERIOUS, AGGRAVATED MANSLAUGHTER OR PASSION/PROVOCATION MANSLAUGHTER.

POINT II: MS. DONATO WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to adequately cross-examine Investigator Wade at the ...


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