October 30, 2006
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT FARMER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, I-98-05-0765.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2006
Before Judges Payne and Graves.
In June 2002, defendant Robert Farmer was convicted by a jury of third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5c(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; the disorderly persons' offense of resisting arrest, N.J.S.A. 2C:29-2a; second-degree eluding, N.J.S.A. 2C:29-2b; and second-degree possession of a weapon as a convicted felon, N.J.S.A. 2C:39-7b. He was sentenced to a nine-year prison term with four and one-half years of parole ineligibility for possession of a firearm as a convicted felon; to a consecutive term of nine years with four and one-half years of parole ineligibility for eluding; and to a concurrent six-month sentence for resisting arrest. The convictions for weapons possession and possession of a weapon for an unlawful purpose were merged at sentencing into the conviction for possession of a weapon as a convicted felon.
Defendant's convictions and sentence were affirmed by us in an unpublished opinion, State v. Farmer, No. A-1028-04T4 (App. Div. April 16, 2002), and certification was denied. State v. Farmer, 174 N.J. 190 (2002). Defendant then sought post-conviction relief (PCR), and his conviction for possession of a weapon for an unlawful purpose was vacated. However, his PCR petition was otherwise denied without a hearing. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I MR. FARMER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND PCR COUNSEL BECAUSE THEY FAILED TO RAISE THE ISSUE THAT THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR A MISTRIAL, AFTER THE STATE ELICITED TESTIMONY FROM DETECTIVE HENNE THAT IMPLIED MR. FARMER HAD A PRIOR CRIMINAL RECORD. (Not Raised at Direct Appeal or PCR)
POINT II THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY WITH A LIMITING INSTRUCTION CONCERNING THE TESTIMONY THAT MR. FARMER'S PHOTOGRAPH WAS OBTAINED FROM B.C.I. (Not Raised at Direct Appeal or PCR -- Partially Raised at Trial)
POINT III THE PCR COURT ERRED IN NOT ORDERING AN EVIDENTIARY HEARING ON MR. FARMER'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT THE SUPPRESSION HEARING.
POINT IV THE PCR COURT ERRED IN NOT REMANDING THE CASE FOR RESENTENCING AFTER THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE COUNT WAS REVERSED AND DISMISSED.
The record discloses that a confidential informant whose prior information had led to approximately fifteen arrests notified the police that an African-American male named "Yusef," wearing a tan goose-down jacket and a blue hat, was on the street at a particular location in Jersey City, carrying a gun. Following receipt of that information, Detective William Kallert and Officer Christopher Henne observed a person at the stated location, later identified as defendant, wearing a puffy three-quarter length tan jacket and hat similar to the ones that the informant had described and appearing to support an object under the jacket with his right hand. When the officers attempted to investigate, defendant fled and, upon reaching a building at 463 Ocean Avenue, subsequently determined to contain defendant's residence, defendant opened the door with his left hand, removed an object from under the jacket, and deposited it on the floor of the building's vestibule. Defendant was thereupon detained and when, upon further investigation, the object in the vestibule was found to be a sawed-off shotgun, defendant was placed under arrest. However, as he was being handcuffed, defendant slipped out of his jacket and escaped. Defendant was not immediately apprehended, but was spotted driving a car by other police officers approximately ten days later. Although commanded to remain, defendant proceeded to drive off and to elude the police, eventually leaving his car in the middle of the street and hiding in a nearby alleyway, where he was discovered, placed under arrest, and finally taken into custody.
Prior to trial, defendant moved for suppression of the shotgun as evidence and, following a suppression hearing at which only Detective Kallert testified, the motion was denied.
In his PCR petition, defendant claims that he received ineffective assistance from trial counsel*fn1 at the suppression hearing as the result of counsel's failure to adequately cross-examine Detective Kallert as to whether he received the informant's tip from police dispatch, thereby rendering the tip anonymous and allegedly insufficient as a basis for an investigatory stop, or whether he received the informant's tip from a person who was known to Kallert as reliable. Defendant also argues that trial counsel was ineffective because she failed to cross-examine Kallert as to whether the informant had described the type of gun that "Yusef" allegedly possessed.
Defendant presents a further argument, not raised at the PCR hearing, that counsel was ineffective at the suppression hearing because of her failure to call Anita Bullock, a friend of defendant and his mother, as a witness. In support of the claim, defendant relies upon testimony given by Bullock for the defense at trial. There, Bullock claimed that before the police's initial attempt to stop defendant, she had observed that defendant was gesturing with his right hand, that he had nothing in his left hand, and that she had never observed defendant with his hand under his coat. According to Bullock, the police then arrived, stopped defendant, placed him against a wall, and frisked him. Because defendant was trying to move toward his residence, the police placed him in the police car, took him out again, and then entered the building where defendant resided and emerged carrying a gun that resembled a rifle.
As a final matter, defendant presents an argument, also not raised in the PCR hearing, that counsel was ineffective because she failed to call Officer Henne as a witness. Defendant claims on the basis of Henne's trial testimony that Henne, if called at the suppression hearing, would have offered testimony that was inconsistent with that of Kallert as to defendant's location when Henne tried to handcuff defendant and he escaped. As a result of this inconsistency, defendant further argues, the court would have rejected the testimony provided by the police, accepted the testimony of Bullock, and granted the suppression motion. Finally, defendant claims that, because he offered prima facie evidence of counsel's ineffectiveness, a testimonial hearing on his claims should have been granted by the judge pursuant to State v. Preciose, 129 N.J. 451 (1992). We disagree.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), imposes a two-prong burden on defendants claiming ineffective assistance of counsel of demonstrating "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. A judge hearing a PCR application has the discretion to determine whether a hearing is required to resolve the merits of the application. R. 3:22-1; Preciose, supra, 129 N.J. at 462. However, when reliance is placed on evidence outside the record, "trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid.
In the context of a hearing seeking suppression of evidence seized without a warrant, the State is required to show by a preponderance of the evidence that the defendant's Fourth Amendment rights were not violated by the search for and seizure of the evidence. State v. Pineiro, 181 N.J. 13, 19-20 (2004); State v. Wilson, 178 N.J. 7, 13 (2003). On appeal, we rejected, as without merit, defendant's argument that the trial judge erred in denying his suppression motion. R. 2:11-3(e)(2). We find no ground to have been presented in the present appeal that would change our view of the matter. See State v. Nishina, 175 N.J. 502, 510-11 (2003) (describing standard of reasonable suspicion required to uphold an investigative detention); State v. Zutic, 155 N.J. 103, 113 (1998) (holding that reasonable articulable suspicion sufficient to support an investigative stop could arise even from an anonymous tip, if corroborated by the police); State v. Tucker, 136 N.J. 158, 173 (1994) (permitting police pursuit when articulable suspicion of criminal activity existed).
Our review of the record of the suppression hearing and trial satisfies us that no foundation exists for defendant's claim that the tip regarding "Yusef" was obtained from an anonymous informant.*fn2 We are likewise satisfied that the reliability of the informant was sufficiently established, State v. Smith, 155 N.J. 83, 93, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998), and that the details of the tip, when corroborated by police observation, provided sufficient grounds for an investigative stop, regardless of whether the type of gun in defendant's possession was described by the informant or not. Zutic, supra, 155 N.J. at 111-12.*fn3 We thus find no error in the PCR judge's conclusion that trial counsel had been effective in her representation, and thus that defendant had failed to provide prima facie evidence that met the first of Strickland's prongs.
Defendant argues also that if Henne had testified at the suppression hearing in a manner consistent with his trial testimony, and if the inconsistency had been exposed between Henne's and Kallert's versions of where the arrest and attempt to take defendant into custody had occurred, the veracity of Kallert's testimony would have been fatally undermined and Bullock's testimony, if offered, would have led to a different result. We need not address this argument, which was not presented to the PCR judge. State v. Arthur, 184 N.J. 307, 327 (2005).*fn4
We likewise decline, for the reason that we have just stated, to consider defendant's arguments, raised for the first time on appeal, that his appellate and PCR counsel were ineffective (1) in failing to argue that the trial court erred when it declined to grant defendant's motion for a mistrial after testimony by Henne that defendant's photograph had been obtained from B.C.I., and (2) in failing to challenge the trial court's discretionary determination, made with counsel's concurrence, not to instruct the jury to disregard the single reference to B.C.I., because the instruction was likely to draw attention to the meaning and significance of the initials as referring to the Bureau of Criminal Investigation.
As a final matter, we reject defendant's argument that he should have been resentenced following the PCR court's determination to vacate his conviction for possession of a weapon for an unlawful purpose. That conviction was merged for sentencing purposes into defendant's conviction for possession of a weapon as a convicted felon and dismissed. The conviction thus was not an element of the sentence that was imposed.