STATE OF NEW JERSEY VS. DAVID AMODIO(01-12-3700, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 26, 2017
• Docket: A-2737-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2737-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID AMODIO,

Defendant-Appellant. _____________________________

Submitted June 6, 2017 – Decided June 26, 2017

Before Judges Yannotti and Sapp-Peterson.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-12-3700.

David Amodio, appellant pro se.

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Amodio appeals from an order of the Law

Division dated January 25, 2016, which denied his motion to vacate

an order entered on December 9, 2015, denying his second petition

for post-conviction relief (PCR) without prejudice. We affirm. We briefly summarize the relevant facts and procedural

history. A Camden County grand jury charged defendant with first-

degree murder of Kollin Pimental (Kollin), N.J.S.A. 2C:11-3(a)(1)

or (2) (count one); first-degree murder of Lisa Pimental (Lisa),

N.J.S.A. 2C:11-3(a)(1) or (2) (count two); first-degree felony

murder of Kollin, N.J.S.A. 2C:11-3(a)(3) (count three); first-

degree felony murder of Lisa, N.J.S.A. 2C:11-3(a)(3) (count four);

first-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) (count

five); third-degree hindering his own apprehension or prosecution,

N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree contempt of

a domestic violence restraining order, N.J.S.A. 2C:29-9(b) (count

seven).

Defendant was tried before a jury. We summarized the evidence

presented at trial in our opinion on defendant's direct appeal.

State v. Amodio, 390 N.J. Super. 313, 318-22 (App. Div.), certif.

denied, 192 N.J. 477 (2007). As we noted in that opinion, the

evidence showed that shortly after midnight on October 29, 2000,

a fire was reported at a home in Sicklerville, where defendant had

been living with Lisa and Kollin, her son by a previous marriage.

Id. at 318. Defendant was found on the ground nearby. Id. at 319.

His clothes were on fire. Ibid.

Lisa and Kollin's burned bodies were found in the first-floor

kitchen, and parts of a broken hammer were found near Lisa's body.

2 A-2737-15T1 Ibid. The Camden County medical examiner determined that Lisa did

not die of asphyxiation due to fire, but rather from a depressed

skull fracture that caused bleeding and bruising to the brain.

Ibid. The medical examiner also determined that Kollin died of

smoke inhalation and thermal burns. Ibid.

An investigation was conducted as to the cause of the fire.

Id. at 320. The investigators determined that an accelerant and

open flame had been used to start the fire, which began on the

first floor and traveled to the second floor. Ibid. Tests performed

on defendant's clothing revealed a residue of gasoline. Ibid.

Kollin's blood was found on defendant's socks and pants, and Lisa's

blood was found on defendant's pants and left sneaker. Ibid.

Defendant testified that on September 29, 2000, he moved into

the Sicklerville home with Lisa and Kollin. Id. at 321. Several

weeks later, defendant and Lisa had a dispute, and Lisa obtained

a domestic violence restraining order, which precluded defendant

from having any contact with her. Ibid. The restraining order

later was extended to November 27, 2000. Id. at 322.

On the morning of October 28, 2000, defendant gave Lisa money

for a car payment, purchased new tries for her car, and helped

Lisa and Kollin decorate the house for Halloween. Ibid. After they

had dinner, Lisa brought Kollin upstairs to bed. Ibid. According

to defendant, he did not have sexual relations with Lisa because

3 A-2737-15T1 he was tired and could not "do it." Ibid. Defendant said Lisa gave

him the "cold shoulder" and stopped speaking to him. Ibid.

After midnight, defendant decided to leave the house. Ibid.

He went to the shed at the rear of the house to collect some tools.

Ibid. Defendant was in the shed for about fifteen minutes, and

then went to his car. Ibid. He said he was returning to the shed

when he observed the fire. Ibid. He denied that he did anything

to harm Lisa or Kollin. Ibid.

The jury found defendant not guilty of Kollin's murder (count

one), but guilty of the lesser-included offense of first-degree

aggravated manslaughter. Ibid. The jury also found defendant not

guilty of Lisa's murder (count two), but guilty of the lesser-

included offense of second-degree passion/provocation

manslaughter. Ibid.

In addition, the jury found defendant guilty of felony murder

of Kollin (count three); not guilty of felony murder of Lisa (count

four); not guilty of first-degree arson (count five), but guilty

of the lesser-included offense of third-degree arson; guilty of

hindering his own apprehension or prosecution (count six); and

guilty of contempt (count seven). Id. at 322-23.

At sentencing, the judge merged counts one and five with

count three and sentenced defendant to life imprisonment on count

three, with a thirty-year period of parole ineligibility. Id. at

4 A-2737-15T1 331. The judge imposed a consecutive term of ten years on count

two, with a period of parole ineligibility as prescribed by the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Ibid. The judge

also imposed concurrent terms of four years of incarceration on

count six and nine months on count seven. Ibid.

Defendant appealed from the judgment of conviction and raised

the following arguments:

I. THE ITEMS SEIZED AFTER THE CHIEF FIRE MARSHALL FOUND TWO BODIES IN THE BURNED HOME SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE DID NOT OBTAIN A SEARCH WARRANT AND NO EXIGENT CIRCUMSTANCES WERE PRESENT.

II. THE ADMISSION OF THE TEMPORARY RESTRAINING ORDER PRECLUDED THE DEFENDANT FROM RECEIVING A FAIR TRIAL WHERE THE TRIAL COURT'S LIMITED INSTRUCTION FOCUSED THE JURY'S ATTENTION ON THE DEFENDANT'S PROPENSITY TO COMMIT THE MURDER OF HIS GIRLFRIEND. (Not raised below).

III. THE DEFENDANT'S CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE SET ASIDE BECAUSE THE JURY FAILED TO RECOGNIZE EVIDENCE POINTING TO REASONABLE DOUBT.

IV. A TRIAL COURT MUST, UNDER THE NEW RULE OF LAW, WEIGH THE AGGRAVATING AND MITIGATING FACTORS UNENCUMBERED BY THE PRESUMPTIVE STATUTORY TERM WHEN SENTENCING THE DEFENDANT. (Not raised below).

V. THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE TERM WHERE IT DETERMINED THE CRIMES REMOTE AND INDEPENDENT FROM ONE ANOTHER.

VI. UNDER THE PRE-AMENDMENT STATUTE, NERA DOES NOT APPLY TO A HOMICIDE WHICH WOULD OTHERWISE

5 A-2737-15T1 BE MURDER BUT FOR ITS COMMISSION IN THE HEAT OF PASSION. (Not raised below).

We affirmed defendant's convictions and the sentences on

counts three, six, and seven, but remanded the matter for re-

sentencing on count two. Id. at 334. The trial court thereafter

sentenced defendant on count two to a consecutive term of seven

years of incarceration, with a NERA period of parole ineligibility.

The Supreme Court thereafter denied defendant's petition for

certification. Amodio, supra, 192 N.J. at 477.

On October 19, 2007, defendant filed a pro se petition for

PCR. The court appointed counsel to represent defendant, and

counsel filed a brief in support of the petition. The PCR court

found that defendant's claims were barred by Rule 3:22-4 because

they could have been raised on direct appeal, and his challenge

to the sentence was barred by Rule 3:22-5 because that issue had

been decided in defendant's direct appeal. The court nevertheless

addressed and rejected defendant's claims that he was denied the

effective assistance of trial and appellate counsel.

Defendant appealed from the order denying PCR and raised the

following arguments:

POINT I DEFENDANT'S PCR PETITION WAS NOT PROCEDURALLY BARRED

6 A-2737-15T1 POINT II DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND/OR APPELLATE COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS WAS ESTABLISHED

A. Trial counsel "Opened The Door" To "Other Crimes, Wrongs, Or Acts" Evidence And Appellate Counsel Failed to Raise This Issue on Direct Appeal

B. Appellate Counsel Failed to Raise Jury Intrusion By An Extraneous Influence

Defendant filed a supplemental pro se brief in which he argued

that: (1) he was denied the effective assistance of trial and/or

appellate counsel because counsel failed to argue that the State's

opening and closing arguments were improper; (2) he was denied the

effective assistance of trial counsel because the trial court

failed to properly charge the jury as to its duty to continue to

deliberate and failed to correct the jury's impression that they

had to reach a verdict; and (3) the trial court imposed an illegal

consecutive sentence.

We rejected these arguments and affirmed the denial of

defendant's PCR petition. State v. Amodio, No. A-4350-10 (App.

Div. Nov. 5, 2012). The Supreme Court later denied defendant's

petition for certification. State v. Amodio, 213 N.J. 538 (2013).

On July 23, 2015, defendant filed a pro se second PCR

petition. Defendant alleged that he was denied the effective

7 A-2737-15T1 assistance of counsel. He also sought relief on the basis of newly

discovered evidence. Defendant asked the PCR court to assign

counsel to represent him. He also sought an evidentiary hearing

on his petition.

Attached to defendant's petition was a copy of an article

regarding a criminal case in Ohio that was published in The

Trentonian on February 1, 2012. The article stated that the

defendant in the Ohio case was challenging his arson conviction

based on certain "advances in the science of fire investigation[.]"

The PCR court filed a letter opinion dated December 9, 2015,

and concluded that the petition must be denied. The judge noted

that defendant had asserted a claim of newly discovered evidence,

but he had not provided any proof of this evidence for the court

to consider. The judge pointed out that defendant had only

presented a copy of a newspaper clipping, which generally discussed

innovations in arson investigations. The judge stated that

defendant has not provided any proof as to "how any such

advancements have any bearing on [his] case."

The judge also found that Rule 3:22-12(a)(2) precluded the

court from considering the second PCR petition because the claims

did not come within the purview of the three circumstances in

which a second or subsequent PCR petition may be filed. The judge

8 A-2737-15T1 also determined that defendant had not presented a cognizable

claim of ineffective assistance of counsel.

The judge also noted that Rule 3:22-5 precluded defendant

from asserting claims of ineffective assistance of counsel that

were previously denied on the merits, and Rule 3:22-4 barred

defendant from asserting claims that could have been raised in his

first PCR petition. The judge memorialized her decision in an

order dated December 9, 2015.

Thereafter, defendant filed a motion in the PCR court seeking

to vacate the December 9, 2015 order and reinstatement of the

petition. The judge filed a letter/order dated January 25, 2016,

denying the motion. The judge wrote that defendant had not raised

a substantial issue of fact or law, which would warrant assignment

of counsel, and there was no factual support for the claim of

newly discovered evidence. The judge reiterated that the claims

were time-barred, and defendant had not raised any constitutional

issue "which would justify setting aside the procedural rules in

the interests of justice."

On appeal, defendant raises the following arguments:

[POINT] I THE PCR COURT ERRED IN DENYING PETITIONER'S PETITION, BECAUSE PETITIONER'S CONVICTION WAS SECURED IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND COUNSEL SHOULD HAVE BEEN ASSIGNED, TO REPRESENT THE MATTER.

9 A-2737-15T1 [POINT] II THE LOWER COURT ERRED IN FINDING PETITIONER'S SECOND POST-CONVICTION RELIEF PETITION TIME BARRED.

We have thoroughly reviewed the record and conclude that

defendant's arguments are entirely without merit. We affirm the

denial of defendants' second PCR petition substantially for the

reasons stated by the PCR judge in her letter opinions of December

9, 2015, and January 25, 2016. We add the following brief comments.

As noted, in his petition, defendant raised a claim of newly

discovered evidence. In support of that claim, defendant submitted

to the PCR court a copy of an article that was published in The

Trentonian on February 1, 2012. The article refers to certain

"advances in the science of fire investigation[.]"

In his brief on appeal, defendant has included an article

which apparently was found on the National Public Radio (NPR)

Internet website, entitled "Arson Forensics Set Old Fire Myths

Ablaze." The article discusses new research on how fires start and

burn. The NPR article states in part that "[i]n recent years, fire

researchers and the changes to fire investigations have shattered

dozens of arson myths as the science behind arson forensics

continues to evolve."

The NPR article was not, however, presented to the trial

court. Therefore, the article is not a part of the record on

10 A-2737-15T1 appeal. R. 2:5-4(a) (noting that the record on appeal consists of

"all papers on file in the court or courts or agencies below").

Thus, the record is limited to the article published in The

Trentonian in February 2012. The PCR court correctly determined

that this article was insufficient to support defendant's claim.

When a defendant seeks a new trial on the basis of newly

discovered evidence, the defendant must show that the new evidence

is "(1) material to the issue and not merely cumulative or

impeaching or contradictory; (2) discovered since the trial and

not discoverable by reasonable diligence beforehand; and (3) of

the sort that would probably change the jury's verdict if a new

trial were granted." State v. Smith, 224 N.J. 36, 49 (2016)

(quoting State v. Nash, 212 N.J. 518, 549 (2013)). The PCR court

correctly found that defendant did not meet this criteria.

The newspaper article is not competent evidence as to the

alleged improvements in arson investigations. Defendant did not

present any competent proof of the alleged improvements in arson

investigations or how such innovations had any bearing on his

case. Therefore, defendant has not shown that the purported newly-

discovered evidence is material, or that it would probably change

the jury's verdict if a new trial were granted.

Defendant also alleged that he was denied the effective

assistance of counsel in his first PCR petition. In order to

11 A-2737-15T1 prevail on such a claim, the defendant must meet the two-prong

test established 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, 58 (1987). Defendant is

required to show that his attorney's handling of the matter was

deficient, and that he was prejudiced by his attorney's deficient

performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693.

Here, defendant has not explained the factual basis for his

claim. As the judge noted, defendant has not "stated how or on

what grounds [he was] denied the effective assistance of [PCR]

counsel." A defendant must "allege specific facts and evidence"

to support a claim of ineffective assistance of counsel. State v.

Porter, 216 N.J. 343, 355 (2013). He "must do more than make bald

assertions that he was denied the effective assistance of counsel."

Ibid. (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div.), cert. denied, 162 N.J. 199 (1999)).

We have considered defendant's other arguments, and conclude

that they are without sufficient merit to warrant discussion. R.

2:11-3(e)(2).

Affirmed.

12 A-2737-15T1