Opinion
DOCKET NO. A-2845-13T1
08-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARRY S. ZIGICH a/k/a GARY ZIGICH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-09-1327. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Garry Zigich appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.
I.
Defendant pled guilty to first-degree murder, N.J.S.A. 2C:11-3(a)(1), arising out of the strangulation death of his fifteen-year-old cousin. He was sentenced to a fifty-year custodial term subject to an 85% period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
The events leading to the victim's death were described in our unpublished opinion that affirmed the denial of defendant's motion to suppress. State v. Zigich, No. A-2268-09 (June 30, 2011) (slip op. at 2-8), certif. denied, 208 N.J. 600 (App. Div. 2011). There, defendant stated that his cousin Brittany,
. . . .
had followed him into the basement after hearing him "talking back to the voices," and that he "told her just to get away."
As defendant recalled it, he tried to explain to his cousin why he was talking, but she began laughing at him. Continuing his narrative, defendant told the officers that he then grabbed Brittany, "put her in a choke hold and threw her on the ground and told her to shut up, it's not funny."
. . . .
After his arrest, when defendant later discussed these events with Dr. Greenfield, to whom his counsel had referred him for a possible diminished capacity defense, he denied hearing voices.
Defendant reiterated that . . . the voices "told [him] to hurt her" and that he "[c]hoked her and threw her on the ground."
[Id. at 2-6 (second and third alteration in original).]
Defendant filed this PCR petition, asserting a claim of ineffective assistance of counsel. An evidentiary hearing was conducted before Judge Foster on September 13, 2013, where both defendant and his prior trial counsel testified.
When defendant testified at the PCR hearing, he already had recanted his prior story about hearing voices that told home to "do bad things." Defendant testified at the PCR hearing about a night of drinking with his friends, the Sullivans, that also involved taking cocaine. When he came home and went to the basement, he described the feeling of a hand on his shoulder and saw fingers and "a ring of fur with two eyes in it." He grabbed the figure, and placed her in a "rear position choke hold." He claimed then to have passed out. When he awoke, he found his cousin's body and panicked. He hid the victim's body and proceeded to drive to a hospital.
Judge Foster rejected defendant's claims of ineffective assistance of counsel in a thorough written decision dated November 6, 2013. The court characterized defendant's trial counsel as "a highly credible and reliable witness" who gave "direct and forthright" answers as well as "appropriate explanations and analysis for the guidance that he provided to Defendant[.]" In contrast, defendant's testimony was described by the court as "incredulous" and "evasive." He "offered implausible accounts of the communications that he received from his lawyer."
Based on these credibility determinations, Judge Foster rejected defendant's claim that his counsel had told him intoxication was not available as a general defense to murder. Given defendant's "detailed recollection of events leading up to, during, and immediately following the homicide," the judge found "entirely reasonable" trial counsel's advice to defendant that intoxication would not be an effective defense in this case. Recounting defendant's testimony, Judge Foster noted that
[d]efendant remembered standing in the garage, then the kitchen. Defendant recalled that he touched his hand to his dog's nose. He remembered standing in the basement. He remembered that someone touched his shoulder, that he turned around and saw eyes and fur. Defendant recalled choking something. Defendant recalled waking up. Upon waking up, defendant recalled that he had in fact choked someone. He remembered that when he woke up he realized that his cousin was the person he had choked . . . .The judge concluded that this level of detail was not consistent with the required "prostration of faculties" standard needed for a successful voluntary intoxication defense.
The judge found trial counsel's advice to defendant at his suppression hearing to be "entirely credible and reliable." He accepted counsel's testimony that he told defendant of his right to testify at the suppression hearing and explained the "pros and cons of testifying." Judge Foster found
that the choice whether or not to testify was [d]efendant's, and [d]efendant chose not to testify. Furthermore, this [c]ourt finds that [d]efendant never told [trial counsel] he wanted to testify and he in fact decided not to testify after having been presented with his options by [his attorney].
The judge accepted trial counsel's account of the plea negotiations prior to defendant's guilty plea. By that time, the suppression hearing had been unsuccessful. Counsel testified he initially asked for a plea to manslaughter only to be rebuffed by the prosecution. If convicted of first-degree murder, the practical impact of a life sentence for defendant would be to serve sixty-six years, making defendant ninety-one years old upon his release. Under the proposed plea bargain, defendant would serve about forty years, putting him in his seventies when he became eligible for parole. Counsel advised defendant he could appeal the denial of his suppression motion. The judge found trial counsel provided defendant with an "entirely accurate analysis" of his options and that defendant was not "misled" or "coerced or intimidated" by his counsel to accept the plea to first-degree murder.
Defendant further asserted that his appellate counsel was ineffective by not raising excessiveness of sentence as an issue in the direct appeal. However, the judge found it was "reasonable" for appeals counsel to anticipate the sentence would not be disturbed because of the deferential standard of review. Also, the fifty-year sentence "[fell] in the middle of the range provided for by statute," and defendant failed to show prejudice.
Judge Foster granted the State's motion to bar the testimony of Dr. Saferstein, who defendant wanted to testify at the PCR hearing about intoxication. The judge reasoned that the best Dr. Saferstein could have established was that defendant was in a "significantly impaired state" at the time of the homicide, which would not "demonstrate a prostration of faculties such that he was rendered incapable of forming intent." Also, the testimony would not bear on trial counsel's professional judgment.
In this appeal, defendant now raises the following points:
POINT ONE - THE PCR COURT ERRED WHEN IT DENIED DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
(A) The PCR court erred in finding that trial counsel had properly vetted the voluntary intoxication defense and rejected it.
(B) The PCR court erred in finding that defendant had been appropriately advised of his right to testify during the pre-trial Miranda hearing.
(C) The PCR court erred in barring Dr. Saferstein's testimony from the PCR hearing.
POINT TWO - THE PCR COURT ERRED IN FINDING THAT APPELLATE COUNSEL PROVIDED CONSTITUTIONAL, EFFECTIVE ASSISTANCE.
Defendant filed a pro se supplemental brief where he raised the following additional points:
Point I - THE REPORT OF DR. GREENFIELD SHOULD HOLD NO EVIDENTIAL WEIGHT BECAUSE:
a. I never told Dr. Greenfield that I was aware of what I was doing when I was killing my cousin
b. Dr. Greenfield's conclusion that I was aware of what I was doing is completely void of any scientific grounding and is unsupported by any detail or factual foundation which is required by N.J.R.E. 702
Point II - WHAT THE SULLIVANS ALLEGEDLY TOLD POLICE SHOULD HOLD NO EVIDENTIAL WEIGHT BECAUSE:
a. The Sullivan statements are not their "statements," rather, they are a summary of what they allegedly told Inv. Morgan from the Ocean County Prosecutors Office
b. What the Sullivans told police should have been tested for truth and was not
c. Medical records also prove the Sullivans were not being truthful []
d. The Appellate Division has already commented on statements
regarding consumption of intoxicants prior to a homicide
e. The Sullivans refused to meet with the investigator from the OPD for PCR purposes
We are not persuaded by any of these arguments and affirm.
Point III - [TRIAL COUNSEL'S] TESTIMONY COULD NOT HAVE BEEN TRUE AS HE UNDERCUT HIS OWN CONTENTIONS AND SHOWS THAT THE REASON THE INTOXICATION EXPERT WAS BARRED FROM TESTIFYING AND THE MEDICAL RECORDS WERE OMITTED WAS AN ATTEMPT TO ENHANCE THE CREDIBILITY OF [TRIAL COUNSEL] WHO CLEARLY LIED
II.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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. In the plea bargain context, "a defendant must prove that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (quotation omitted) (alteration in original), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Regarding the possible voluntary intoxication defense, it would have been defendant's burden to show prostration of faculties "by a fair preponderance of the evidence." State v. Polk, 164 N.J. Super. 457, 463-64 (App. Div. 1977), aff'd, 78 N.J. 539 (1979). Based on the detail of defendant's recollection about the crime, it was reasonable to conclude defendant would not be able to show at trial "prostration of his faculties by intoxication to the degree that he [was] incapable of forming [the requisite] intent." Ibid. Trial counsel's testimony at the PCR hearing showed the decision not to pursue this defense was a thoughtful choice that was part of counsel's "sound trial strategy." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quotation omitted).
The judge rejected defendant's claim that he was not told he could testify at the suppression hearing, finding instead, based on the testimony of trial counsel, that defendant voluntarily chose not to testify. We defer to the credibility findings of the judge who had the ability to evaluate the credibility of the witnesses. See, e.g., State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000) ("Appellate courts should defer to trial court's credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.")
Trial counsel testified that he requested a plea to manslaughter only to be told by the prosecutor "that's not in the cards in this case[.]" Defendant provided no evidence to show that defense counsel did not try to negotiate defendant's plea.
We agree with Judge Foster that Dr. Saperstein's testimony was not relevant to the PCR hearing, where the issue was effective representation of counsel. Dr. Saperstein offered no testimony about discussions between defendant and his counsel. He did not address the "prostration of faculties" by intoxication element, which was a legal question for the court, in any event. See Healy v. Farleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App. Div.) ("Expert witnesses simply may not render opinions on matters which involve a question of the law."), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1007, 117 S. Ct. 510, 136 L. Ed. 2d 399 (1996).
We agree with the PCR judge in rejecting defendant's claims of ineffective advocacy by his appellate counsel regarding the length of the sentence. There was nothing shocking to the conscience about defendant's sentence arising from the brutal strangulation of his fifteen-year-old cousin. State v. Roth, 95 N.J. 334, 364 (1984) (holding to modify a sentence on appeal it must be "such a clear error of judgment that it shocks the judicial conscience"). Nothing in the record suggests the sentencing court abused its discretion in finding aggravating factors and no mitigating factors. Furthermore, in pleading guilty, defendant avoided an additional twenty years of imprisonment. Plainly defendant did not suffer prejudice.
After reviewing the record and the applicable legal principles, we conclude that defendant's further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION