STATE OF NEW JERSEY VS. KENNETH PAGLIAROLI(05-03-0335, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5054-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH PAGLIAROLI,
Defendant-Appellant.
Submitted March 22, 2017 – Decided July 18, 2017
Before Judges Alvarez and Lisa.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 05-03-0335.
Joseph E. Krakora, Public Defender, attorney
for appellant (David A. Gies, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Kenneth Pagliaroli appeals from the May 15, 2015
denial of his petition for post-conviction relief (PCR) after an
evidentiary hearing. We now affirm.
Defendant was sentenced on June 16, 2006, to an aggregate
fifty-year sentence after a month-long jury trial. The convictions
and corresponding sentences were broken down as follows:
first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2
and 2C:15-1(a)(1), twenty years subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, and (count three); first-degree
conspiracy to commit aggravated manslaughter, N.J.S.A. 2C:5-2 and
2C:11-4(a)(1), thirty years subject to NERA (count three);
accomplice to first-degree armed robbery, N.J.S.A. 2C:2-6(b)(3)
and 2C:15-1(a)(1), twenty years subject to NERA (count four);
accomplice to first-degree aggravated manslaughter, N.J.S.A. 2C:2-
6(b)(3) and 2C:11-4(a)(1), thirty years subject to NERA (count
five); and second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a), ten years with a parole
ineligibility period of five years (count seven).
The sentences for the aggravated manslaughter offenses,
although concurrent to each other, were made consecutive to the
armed robbery offenses, which were also concurrent to one another.
The sentences for the unlawful possession of a weapon offense was
concurrent to the robbery offenses.
2 A-5054-14T1
Defendant was acquitted of the charge of first-degree felony
murder, N.J.S.A. 2C:11-3(a)(3) and 2C:2-6 (count six). The State
dismissed counts one, two, and eight, which charged defendant with
third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and
2C:18-2, third-degree burglary, N.J.S.A. 2C:18-2, and first-degree
conspiracy to commit murder, witness tampering, hindering
prosecution, and hindering apprehension, N.J.S.A. 2C:11-3, 2C:28-
5(a), 2C:29-3(b)(3), and 2C:5-2.1
On direct appeal, defendant's convictions and sentences were
affirmed. Pagliaroli, supra, (slip op. at 51-52), cert. denied,
200 N.J. 206 (2009) (Pagliaroli I). On the appeal of defendant's
PCR petition, we remanded the matter for an evidentiary hearing
on his ineffective assistance of counsel claim. State v.
Pagliaroli, No. A-2167-11 (App. Div. July 31, 2014) (Pagliaroli
II). The basis of his claim was his attorney's failure to object
to the substantial hearsay and bad acts evidence that was
introduced at trial, and that his attorney elicited from the
State's witnesses on cross-examination.
1
On direct appeal, we noted that although there were no
conspiracies beyond the completed offenses, none of the
convictions were merged. To date, that issue has not been
addressed. State v. Pagliaroli, No. A-6153-05 (App. Div. Apr. 8,
2009) (slip op. at 50).
3 A-5054-14T1
We discuss the relevant factual scenario in order to provide
some context for our discussion regarding the attorney's trial
strategy. According to the State's witnesses at trial, defendant,
defendant's wife, and the victim had a tumultuous relationship.
The victim, Richard Maskevich, known as "Pops," was a sixty-eight-
year-old drug dealer. He treated defendant and defendant's wife
as his own children. The relationship ran the gamut from loud
arguments to jaunts to Atlantic City to gamble. Once, after
Maskevich spoke to defendant on the phone, he complained that
defendant was trying to get his money, and had threatened to kill,
sodomize, and be cruel to him. Maskevich made a practice of
keeping substantial amounts of cash in his home, as well as
substantial quantities of cocaine.
A State's witness testified at the trial that at one point
defendant also sold cocaine. Defendant and his wife over the
years had borrowed substantial sums of money from the victim, and
at least once, the victim had bailed defendant out of jail.
Maskevich also supplied defendant's wife, a drug addict who
struggled with mental health issues, with cocaine and marijuana.
By the summer of 2003, defendant was cooperating with the Maine
Drug Enforcement Agency (DEA). On one occasion, he took his wife
into the office of the agent who was his contact. Defendant asked
4 A-5054-14T1
the agent to do something to stop Maskevich from supplying her
with drugs.
Another State's witnesses testified that Maskevich's house
had been repeatedly burglarized. Maskevich suspected the break-
ins were committed by someone he knew, either his son-in-law, or
defendant. The victim had also spoken to defendant's wife about
his belief that defendant had been burglarizing his house. Shortly
before the murder, on July 14, 2003, the home was again
burglarized. After initially calling police, the victim told them
he did not wish to pursue the matter any further.
Defendant and his wife operated a tattoo parlor in Maine and
one in New Jersey. Another State's witness, who also operated a
tattoo parlor, said that in July or August 2003, defendant's wife
told her that defendant had robbed the victim.
Defendant's wife wrote a letter to the victim on defendant's
behalf, as he was then illiterate. The letter stated:
I may have not told you. I won $45,000 in
6/9/03 [sic]. I used it --- a friend of mine
to absorb the taxes because of SSI because I'm
not supposed to gamble because I will lose my
medical. That's where I got the money for the
[Corvette]. I feel really f---ed up for you
saying I robbed you, your house. Since then
I've won more money. Since seeing that you
ripped me and my wife's marriage apart and
wanted her to revoke my bail for the second
time even before your house got robbed, you
can go f--k yourself.
5 A-5054-14T1
. . . .
If in any shape, form or way you think I did
this to you and tried to . . . hurt me and
shape, form or way [sic], your drug world and
you will come to an end the second [sic]. Go
f--k yourself. Not your friend anymore.
On the stand, defendant's wife explained the reference in the
letter to Maskevich's world coming to an end, as defendant
threatening to turn the victim in to the DEA.
Delphie Patton, known as "Dee," was part of the victim's
circle of friends, along with defendant and defendant's wife.
Several witnesses testified that defendant, after an argument with
his wife, allegedly told Patton that he was going to "take her out
[,]" referring to his wife, for the sake of the insurance policy
on her life.
After Maskevich's murder, police found a voicemail message
that defendant left on the victim's answering machine that stated:
You know, you keep filling [my wife's] head
full of s--t. She told me she's moving to New
Jersey. Okay? And she also told me that
you're saying I got a thirty five thousand
dollar car? 1984 Corvette, salvaged title.
Look and see what it's worth. She keeps comin'
to my shop flippin' out over this f--kin' girl
that you're saying. Delphi Patten [sic] is
not a girl. It's a f--kin' guy. Keep
interfering with my f--kin' life, you
mother--ker. What do you want to do? Bring
her there and turn her into a coke whore, like
you did the last Cathy? I'll tell you what
mother f--ker [sic] You want problems with
me, now you got f--kin' problems with me.
6 A-5054-14T1
Okay? Now, let's see what the f--k goes on
with your life, mother--ker. Don't f--k with
me, b---h.
On September 3, 2003, the victim was discovered lying in his bed
face-up with two bullet holes in his head.
It was undisputed at trial that the actual shooter was Patton,
who when arrested in Kansas, made inculpatory statements to the
authorities and others. He also implicated defendant in the
killing. During the PCR hearing, defense counsel discussed those
statements and the fact the State's witnesses had been cautioned
to avoid any reference to Patton's statements. The parties
stipulated that on October 31, 2003, after his arrest, Patton was
found hanging in a jail cell in Kansas.
Defendant's wife testified that during the early morning
hours of September 3, 2003, defendant nudged her awake and told
her that Patton had shot the victim. He was on the phone and
whispering, and he asked Patton if he had killed him. She said
she heard defendant say, "shoot him again." Defendant asked her
where the victim kept his marijuana and cocaine, and he relayed
the information to Patton. Later, defendant's wife spoke with
Patton and left messages on his cell phone. Cell phone records
introduced by the State showed that on September 3, various calls
were exchanged between defendant, his wife, and Patton.
7 A-5054-14T1
Defendant's trial counsel was a certified criminal attorney2
and very experienced. He testified at the PCR evidentiary hearing
that because of the damning letter and threatening voicemail, he
and his client knew the trial was going to be an uphill battle.
Trial counsel had previously represented defendant in matters in
Maine, where he was also licensed. He and the two seasoned retired
2
Rule 1:39 provides that "[a]n attorney of the State of New
Jersey may be certified as a . . . criminal trial attorney . . .
but only on establishing eligibility and satisfying requirements
regarding education, experience, knowledge, and skill for each
designated area of practice[.]" In addition to meeting the
eligibility requirement of being a member in good standing of
the New Jersey bar for at least five years:
a candidate for certification must demonstrate
"[e]xtensive and substantial experience" in
the designated practice area, as defined in
the Board on Attorney Certification's
regulations. R. 1:39-2(b). He or she must
establish "professional fitness and
competence in the designated area of practice"
by presenting peer references, supplemented by
the Board's or Committee's investigation of
the candidate's qualifications and
reputation. R. 1:39-2(c). The candidate must
demonstrate "satisfactory and substantial
educational involvement within the three years
immediately preceding his or her
application." R. 1:39-2(d). Upon completion
of the requirements of Rule 1:39-2, the
candidate must pass a written examination in
the relevant field. R. 1:39-3.
[In re Hyderally, 208 N.J. 453, 458-59
(2011).]
8 A-5054-14T1
police officers who acted as investigators in the case developed
a strategy, together with defendant. They decided to acknowledge
the volatile relationship between defendant, his wife, and the
victim, and attempt to place the blame for the killing squarely
on defendant's wife, hoping to convince the jury that she was the
one who conspired with Patton to commit murder. During the trial,
the jury heard the fact defendant's wife was not charged at all
in exchange for her testimony.
At the trial, counsel questioned defendant's wife extensively
regarding her psychiatric history and psychiatric commitments, in
addition to her drug problems. He also brought out before the
jury that she had given six different versions to the authorities
regarding the murder, including statements in which she denied
that her husband had been involved. Trial counsel wanted to recast
the threatening letter and the voicemail in a more benign light,
as merely defendant's efforts to stop the victim from supplying
drugs to his wife.
Trial counsel was asked by defendant's PCR counsel during the
course of the lengthy PCR hearing point-by-point regarding
specific hearsay or bad acts statements made by various witnesses,
and his reason for not objecting. Trial counsel even acknowledged
that during the trial, the judge had stated for the record at
sidebar that material was being introduced which was potentially
9 A-5054-14T1
objectionable. But trial counsel declined to object, and the
judge allowed him to continue in that fashion, commenting that
counsel was following a strategy in doing so.
Trial counsel said it was his firm belief, "to this day, that
the verdict that we have was a compromise[] verdict." In other
words, that by deliberately allowing the sordid and violent milieu
occupied by the victim, defendant, and all the State's witnesses
to be depicted in full detail, the jury would find none credible
and might acquit defendant. Additionally, he at times used hearsay
in order to impeach witnesses.
At the hearing, defendant also testified. The judge found
defendant's testimony "to be self-serving, not -- not credible."
He disputed that he had been given discovery on a timely basis,
claimed that there were discrepancies in the testimony that his
attorney should have resolved, and said too much testimony was
admitted about Patton, who was dead. Defendant also disputed some
circumstances developed during the trial regarding the jailhouse
cellmate who also repeated certain inculpatory statements he
allegedly made while incarcerated.
Defendant claimed he had difficulty communicating with his
attorney, that "things just didn't go the way I wanted them to go
at trial[,]" and that he would repeatedly ask his attorney to
10 A-5054-14T1
object but was told in vulgar terms to be silent. He complained
that his attorney did not do what he asked him to do.
In his decision at the close of the PCR hearing, the judge
described trial counsel's representation as the "pursui[t] [of] a
consciously chosen strategy that resulted in defendant's acquittal
of the most serious charges against him. . . . murder and felony
murder." The strategy, developed with defendant, highlighted the
volatile relationship between the parties, a means of neutralizing
the threatening voicemail and threatening letter. The judge also
found the attorney "to be a very credible witness. Very
forthright."
The judge noted that despite the fact Patton's statements
implicating defendant were not presented to the jury, the State
presented other inculpatory evidence connecting defendant to
Patton. This included phone records, and, significantly,
videotapes of a meeting defendant had with Patton at a Pennsylvania
casino within a day or two of the murder. The admission of that
evidence was unavoidable and consequential. The judge found the
defense strategy to make defendant's wife appear to be a
"pathological liar," because of her mental health and drug issues,
was clearly designed to weaken the effectiveness of her testimony.
By developing the extent to which defendant and the victim
were financially intertwined, trial counsel hoped to
11 A-5054-14T1
counterbalance any financial motive. In fact, he was attempting
to convince the jury that defendant had "no motive to kill []
Maskevich, who was basically his patron." The judge concluded
defense counsel's deliberate strategy regarding hearsay and bad
act evidence did establish that everyone involved, all of the
State's witnesses, the victim, and defendant, were part of a drug
culture, people who were "on the edge[.]"
On appeal, defendant raises the following points:3
THE PERFORMANCE OF THE DEFENDANT'S TRIAL
ATTORNEY WAS CONSTITUTIONALLY DEFICIENT WHERE
NOT ONLY DID THE TRIAL ATTORNEY'S FAILURE TO
OBJECT RESULT IN THE ADMISSION OF NUMEROUS
HEARSAY STATEMENTS WHICH PREJUDICED THE
DEFENDANT'S RIGHT TO A FAIR TRIAL, BUT IN
CONTRAST TO HIS COMMENTS MADE DURING THE
TRIAL, HIS PCR TESTIMONY REVEALED THAT HE
DEVISED THE PURPORTED STRATEGY TO USE THE
INADMISSIBLE HEARSAY IN HINDSIGHT.
In his uncounseled brief, defendant contends as follows:
POINT I
DEFENDANT-PETITIONER KENNETH PAGLIAROLI,
CONVICTION WAS SECURED IN VIOLATION OF HIS
STATE, AND FEDERAL CONSTITUTIONAL RIGHTS TO
THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL,
PURSUANT TO THE UNITED STATES CONSTITUTION,
AMENDMENT VI, AND XIV; AND THE NEW JERSEY
3
In his counseled reply brief, defendant raises the argument that
a heightened scrutiny should be employed in reviewing this matter
because the defense investigation in the case was less than
complete. It is improper to raise new issues in a reply brief.
R. 2:6-5. Moreover, defendant had the benefit of two retired
police officers who assisted his attorney in investigating the
case, and who fully participated in interviewing witnesses in
preparation for trial. We will not, therefore, address this point.
12 A-5054-14T1
CONSTITUTION OF 1947, ART. 1, ¶ 1, AND ART.
1, ¶ 10.
A.
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
TO CONDUCT AN ADEQUATE PRETRIAL
INVESTIGATION AND MEANINGFUL DEFENSE.
B.
TRIAL COUNSEL FAILED TO CONSULT WITH
DEFENDANT.
C.
TRIAL COUNSEL FAILED TO DISCUSS WITH
DEFENDANT HIS RIGHT TO TESTIFY.
D.
TRIAL COUNSEL FAILED TO CROSS-EXAMINE IN
AN EFFECTIVE MANNER.
E.
DEFENSE COUNSEL'S FAILURE TO OBJECT TO
HIGHLY PREJUDICIAL OTHER-CRIME EVIDENCE
AND HEARSAY TESTIMONY AND TO MAKE
APPROPRIATE OBJECTIONS DURING THE TRIAL
PROCEEDINGS DENIED DEFENDANT[] HIS RIGHT
TO A FAIR TRIAL.
We limit our discussion to the issues raised in defendant's
counseled brief, as we consider the claims in his uncounseled
brief to be so lacking in merit as to not warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Following an evidentiary hearing, appellate consideration is
"necessarily deferential to a PCR court's factual findings based
on its review of live witness testimony." State v. Nash, 212 N.J.
518, 540 (2013). So long as the judge's factual findings are
supported by sufficient credible evidence in the record, they will
13 A-5054-14T1
be upheld. Ibid. (citing State v. Harris, 181 N.J. 391, 415
(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005)). A reviewing court "need not defer to a PCR court's
interpretation of the law; a legal conclusion is reviewed de novo."
Id. at 540-41 (citing Harris, supra, 181 N.J. at 415-16).
In this context, de novo review requires application of the
Strickland standard. The Constitutions of both New Jersey and
United States guarantee the accused "the right to the effective
assistance of counsel" in criminal proceedings against them.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42,
58 (1987) (adopting Strickland's ineffective-assistance standard).
Establishing ineffective assistance of counsel requires defendant
to satisfy two prongs. State v. O'Neil, 219 N.J. 598, 611 (2014).
A defendant seeking PCR on ineffective assistance of counsel
grounds must first demonstrate trial counsel made errors "so
serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland,
supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693;
Fritz, supra, 105 N.J. at 52. An attorney's representation is
deficient if representation "[falls] below an objective standard
of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S.
Ct. at 2064, 80 L. Ed. 2d at 693; see Fritz, supra, 105 N.J. at
14 A-5054-14T1
58. Whether counsel's conduct at trial was reasonable, and more
specifically, whether counsel employed a reasonable trial
strategy, is central to this appeal.
Strickland's second prong requires that a defendant "show
that the deficient performance prejudiced the defense."
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693; Fritz, supra, 105 N.J. at 52. A defendant demonstrates
prejudice by establishing "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; Fritz, supra, 105 N.J.
at 52. A "reasonable probability" means a "probability sufficient
to undermine confidence in the outcome" of the proceeding.
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698; Fritz, supra, 105 N.J. at 52.
We observe first that trial counsel in this case was faced
with a strong State's case, including defendant's threatening
letter to the victim, voicemail threat shortly before the murder,
and the videotaped contact with the actual shooter a day or two
after the killing. That evidence was compounded by the testimony
of defendant's wife to the effect that the night of the shooting,
Patton called her husband and she overheard defendant urging the
killer to "shoot him again." A novel strategy had to be developed
15 A-5054-14T1
in order to weaken these proofs, even if they could not be
overcome. That it consisted to a great extent of circumstantial
evidence did not make the State's case weaker.
The judge found trial counsel a credible witness, and found
defendant incredible. These findings are entitled to deferential
review. See Nash, supra, 212 N.J. at 540.
Trial counsel, an experienced defense attorney, supported by
two experienced investigators, painted a picture for the jury of
a drug-riddled unstable underworld in the hopes of diminishing the
effect of all the damning testimony, and of creating confusion and
distracting storylines whenever possible. The strategy succeeded:
defendant was acquitted of the most serious crimes, namely murder
and felony murder.
Counsel developed a distinct and novel strategy, and there
is a "strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Strickland,
supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
We "judge the reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time of
counsel's conduct." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.
2d at 695. As always, "[a]s a general rule, strategic
miscalculations or trial mistakes are insufficient to warrant
reversal except in those rare instances where they are of such
16 A-5054-14T1
magnitude as to thwart the fundamental guarantee of [a] fair
trial." State v. Castagna, 187 N.J. 293, 314-15 (2006) (internal
quotation marks and citation omitted). Counsel made reasonable
strategic choices in light of the State's case. Trial counsel's
decision to allow hearsay and prior bad acts to be testified about
without objection in this somewhat unique scenario falls within
the wide range of reasonable professional assistance.
The four examples of objectionable material identified by
defendant in his brief are just a part of the framework trial
counsel wanted to develop. They fit into trial counsel's strategy.
For example, that defendant may have threatened the victim on
another occasion, which was testimony given by a witness whose
bona fides were questionable, made the threatening phone message
and letter appear just a part of the ongoing volatile relationship
between the two men, who interacted like father and son at times,
and at other times, like sworn enemies. Another example is the
testimony regarding whether defendant had previously assaulted his
wife, or was angry at her and wanted to "take her out[.]" That
testimony is less prejudicial in light of the need to cast doubt
on her testimony that the shooter called defendant while at the
scene, and that defendant told him to shoot the victim a second
time because he was still alive. Counsel needed to attribute some
improper motive for her testimony —— whether it was revenge, or
17 A-5054-14T1
to point the finger of blame away from herself. When faced with
an impossible defense, counsel developed a different script from
the one that the State was offering to the jury, to his client's
benefit. We will not second-guess his deliberate decision. Thus
we conclude defendant has failed to meet the Strickland standard.
Affirmed.
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