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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In an unpublished opinion, we affirmed his conviction and sentence.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. "> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0590-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT F. GIORDANO, JR.,
Defendant-Appellant.
October 6, 2010
Submitted September 20, 2010 - Decided
Before Judges Lisa and Reisner.
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On appeal from the Superior Court of New Jersey, Law Division, Monmouth
County, Indictment No. 00-05-0734.
Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson,
Designated Counsel, of counsel and on the brief).
Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
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unpublished opinion, we affirmed his conviction and sentence.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,
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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
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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
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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.1 Jodi explained
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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.
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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.2 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.
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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
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"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 sub-arachnoid 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
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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
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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
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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
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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).
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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.
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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
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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
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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.
1 Defendant was employed as a tax accountant in Red Bank. The receptionist of the business testified that
defendant received several phone calls a day from Jodi, but defendant explained to the receptionist that
Jodi's calls were made in response to his pages.
2 While the testimony does not precisely state that the first of these calls was made at 12:38 p.m. as
opposed to 12:38 a.m., we assume from the context in which the testimony was given that it was the
former.
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