May 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN E. THOMPSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Ind. No. 01-07-1296.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2007
Before Judges Payne, Graves and Lihotz.
Defendant John E. Thompson appeals from his conviction, in abstentia, after a jury trial for third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1), third-degree possession of CDS, with the intent to distribute, N.J.S.A. 2C:35-5a(1), and second-degree possession of CDS, with the intent to distribute within 500 feet of a public housing facility, park, or public building, N.J.S.A. 2C:35-7.1.*fn1
The trial court granted the State's motion for an extended term, merged the first two convictions into the third, and sentenced defendant to a term of incarceration of fifteen years with a five-year parole ineligibility period. Applicable penalties and assessment were imposed.
On appeal, defendant presents the following arguments for our consideration:
THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S REQUEST FOR A SHORT ADJOURNMENT TO INVESTIGATE THE LOCATION OF A WITNESS WHO WAS SCHEDULED TO TESTIFY ON THE DEFENDANT'S BEHALF.
THE COURT ERRED IN ALLOWING THE STATE TO INTRODUCE TESTIMONY ABOUT THE SCALE THAT WAS FOUND IN THE KITCHEN THAT HAD BEEN PROVIDED ONLY ONE DAY PRIOR TO THE COMMENCEM[M]ENT OF THE TRIAL.
THE COURT COMMITTED REVERS[I]BLE ERROR IN ALLOWING THE STATE TO [EXERCISE] A PEREMPTORY CHALLENGE AFTER THE JURY HAD BEEN EMPANELED, SWORN AND AFTER OPENING STATEMENTS HAD BEGUN[.]
THE IMPROPER ADMISSION OF HEARSAY STATEMENTS FROM TAMIKA DANIELS CONCERNING THE SCALE AS PROOF OF DEFENDANT[']S OWNERSHIP AND POSSESSION[,] VIOLATED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
THE COUR[T] COMMITTED REVERS[I]BLE ERROR BY ALLOWING TESTIMONY THAT HINTED TO DISTRIBUTION BY THE DEFENDANT AS THE BASIS FOR THE SEARCH[.]
THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE VERDICT.
THE SENTENCE WAS MANIFESTLY EXCESSIVE.
Defendant also filed a "pro se supplemental brief on direct appeal" raising these additional arguments:
COUNSEL VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL AND NEW JERSEY CONSTITUTION ARTICLE 1 PARAGRAPH 10 THE RIGHT TO COMPETENT REPRESENTATION.
A. COUNSEL'S TRIAL STRATEGIES WERE NOT BASED ON A REASONABLE DEFENSE AND ONLY LEAD THE JURY "A REASONABLE JURIST" TO BELIEVE THAT THE ABSENT DEFENDANT WAS EVADING PROSECUTION AND HAVING HIS LAWYER BLATANTLY LIE ON HIS BEHALF.
B. COUNSEL'S FAILURE TO PRESENT A CASE AGAINST THE ILLEGALLY OBTAINED EVIDENCE ON THE DEFENDANT'S BEHALF OR FILES ANY MOTION THERETO; EVIDENCE WHICH STEMMED FROM A SUSPICIOUS WARRANT WAS INEFFECTIVE.
C. DEFENSE COUNSEL PRESENTED NO MITIGATING FACTORS TO THE LOWER COURT THUS, THE COURT IMPROPERLY EVALUATED THE AGGRAVATING AND MITIGATING FACTORS RENDERING THE DEFENDANT'S SENTENCE ILLEGAL UNDER STATE V. DALZIEL.
DEFENDANT'S RIGHT TO THE CONFRONTATION CLAUSE WAS VIOLATED BY INTRODUCTION OF TESTIMONY, LIES, AND FAB[R]ICATED INFORMATION WHICH DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.
On June 12, 2001, at 9 p.m., eight Atlantic City police officers executed a no-knock warrant to search an apartment located at 3615 Winchester Avenue. The apartment was leased by Tamika Daniels. The police rammed the apartment door and found Daniels inside, with defendant. Both defendant and Daniels were patted down for weapons and given a copy of the search warrant.
Defendant was administered his Miranda*fn2 rights. He then told the police there was "coke" in the apartment. Defendant directed the police to a clear plastic sandwich bag, located on the lowest shelf of a rack of shelves, which were adjacent to the apartment door. The bag held five smaller tinted bags containing a white rocky substance,. Lab analysis confirmed the substance was cocaine. Defendant stated Daniels had no knowledge of the drugs, and that he "was trying to sell [the cocaine] and make some money."
In the execution of the warrant, the officer searching the kitchen found a single-edged razor blade on the floor in front of the sink, which he testified was typically used to cut bulk portions of crack cocaine into smaller quantities for individual use. The officer also discovered, in a cabinet above the sink, a handheld finger scale "commonly used to weigh controlled dangerous substances."
Daniels and defendant were seated at the kitchen table when the officer found the scale in the kitchen cabinet. According to police testimony, when the scale was found, Daniels displayed a look of "shock" and "surprise" and stated to defendant words to the effect: "What else is in here? You better tell them now." No charges were lodged against Daniels.
During a status conference, held September 10, 2001, defendant rejected the proposed plea offer, and trial was scheduled for October 29, 2001. On the day of trial, defendant failed to appear. Defense counsel moved for an adjournment, arguing that the prosecutor had just provided a modified investigation report, which had been used by the State's expert witness to supplement his expert report. The investigator's report, for the first time, contained the detective's recollection of Daniels's purported look of "shock" and "surprise" made upon the discovery of the scale, along with her comment to defendant. The adjournment request was denied and, over objection, trial commenced in defendant's absence.
After the state rested, defense counsel explained that, three days before trial began, he learned Daniels had moved to Philadelphia, Pennsylvania. Daniels previously had given a voluntary statement and had agreed to testify for the defense. Counsel moved for a one-week adjournment to process and serve a subpoena on Daniels in Pennsylvania. The request was denied and the trial continued.
Defendant's first two arguments on appeal challenge the court's denial of the adjournment requests. A decision to deny an adjournment should not be disturbed on appeal unless an abuse of discretion is demonstrated. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971).
Defendant cites State v. Bellamy, 329 N.J. Super. 371 (App. Div. 2000), to support his position that the denial of the request for a short adjournment, in order to locate Daniels, denied defendant the opportunity for a fair trial. The factual circumstances presented in Bellamy are unlike those at hand. In Bellamy, the defendant was confronted with statements of a co-defendant, who, while entering a plea immediately before trial, disclosed the involvement of another party in the alleged criminal conduct. Id. at 374. The adjournment request, made prior to the commencement of trial, was to locate the newly revealed third-party. Id. at 375.
Denying the adjournment request in this matter, the trial judge reasoned that defendant had known of the pending hearing since September 10, 2001, and should have secured the availability of his witness. The trial judge also noted that the case had commenced and the State had rested. Further, the jury was in place, available to continue, and "anticipat[ed] concluding the case during the course of [one] week." Considering the situation presented in this matter, counsel's one-week adjournment request was not reasonable, and it is arguable whether a short half-day adjournment, which was not requested by trial counsel, but mentioned as a possibility on appeal, would have successfully produced Daniels for trial. In view of the totality of the circumstances, we cannot agree that the trial judge mistakenly exercised his discretion.
Defendant also contends that an adjournment was warranted, as allowed by Rule 3:13-3(g), after the supplemental expert report supporting the State's position that the drugs were possessed by defendant for the purpose of distribution was supplied on the eve of trial. The trial judge read the brief supplemental report into the record and stated:
What we have here is some late discovery in the sense that it was just provided. Having said that, what we have in the [c]court's estimation is nothing at all inconsistent or unfairly new from what was already provided, particularly in light of the State's allegations contained in the initial discovery which were just read with respect to this missing defendant taking responsibility for the drugs and stating that his girlfriend knew nothing about them. What we have, and it's not untypical [sic] . . . that when a witness is prepped that further nuances or some additional detail is obtained, and what has occurred here in an effort to be as fair as possible[, the] prosecution has provided that. . . . And the basic bottom line is that it would provide some further support, but in any event would not detract from the opinion previously rendered.
We determine that this explanation fully and adequately sets forth the basis for the trial court's exercise of discretion, which was not misapplied.
After the jury was impaneled, in the course of State's opening statement, one juror signaled to approach the bench. The juror explained she remembered Daniels from a prior employment, however they were not close, and the past association would not impact her ability to remain fair and impartial. After a colloquy, the trial judge allowed either side to exercise a peremptory challenge. The State did so. Defendant moved for a mistrial, which was denied. Trial proceeded with the remaining thirteen sworn jurors. Defendant argues that no rule allows the court to partially open the jury selection process to allow the exercise of a peremptory challenge when there is no juror replacement for the challenged juror.
Defendant's motion for mistrial was not grounded on any suggestion of contamination. See State v. Belton, 60 N.J. 103, 108 (1972). Essentially, defendant's claim is that error resulted because the court failed to hold a hearing on whether to dismiss the juror for cause, and because defendant was denied "the additional remedy of a replacement juror." See State v. Boyer, 221 N.J. Super. 387, 393-94 (App. Div. 1987).
We find no merit in these positions. Twelve jurors determined the outcome of this matter. The trial judge had discretion to reopen the examination of the sworn juror and to excuse that juror for cause. R. 1:8-3(b); State v. LaPierre, 39 N.J. 156, 173, cert. den. 374 U.S. 852, 83 S.Ct. 1920, 10 L.Ed. 2d 1073 (1963). The trial court's decision not to dismiss for cause, bottomed on the juror's attenuated connection to Daniels and her assurance of impartiality, was not error. See State v. Yormark, 117 N.J. Super. 315, 341-42 (App. Div. 1971), certif. den., 60 N.J. 138 (1972), cert. den., 409 U.S. 862, 93 S.Ct. 151, 34 L.Ed. 2d 511 (1972). Defendant presents no evidence of juror bias, see Ross v. Oklahoma, 487 U.S. 81, 85-86, 108 S.Ct. 2273, 2277, 101 L.Ed. 2d 80, 88 (1988); State v. DiFrisco, 137 N.J. 434, 466 (1994), or other prejudice, see e.g., Belton, supra, 60 N.J. at 108. Therefore, we conclude that allowing the State's use of a peremptory challenge under these circumstances did not affect the integrity of the verdict.
Captain Glen Abrams of the Atlantic City Police Department was involved in the search; at that time, he was a sergeant assigned to the narcotics unit. During his direct testimony, the following exchange occurred:
[Prosecutor]: You were present when Detective DeGaetano found [the finger scale]?
Q: Who else was in the kitchen when that happened?
A: John Thompson and Tamika Daniels.
Q: Did you say where he took it from?
A: He got the scale from a kitchen cabinet. And I believe that the razor blade was lying on, he found that on the floor.
Q: Was there any reaction[,] when he picked up the razor or took the scale out of the cabinet[,] from anyone in the room?
A: Yeah. Tamika Daniels had a, like a look of shock on her face. And she turned to John Thompson and said - -[Defense counsel]: [O]bjection. Hearsay. [Prosecutor]: Judge, it's not hearsay.
It's a verbal act. It doesn't go to prove the truth of the statement. It is a question form and it can't be hearsay.
The trial judge overruled the objection, accepted the prosecutor's argument, and, further, determined that the statement constituted a "contemporaneous utterance with the look of shock." Captain Abrams then testified: "[Daniels] had a look of shock on her face. And she stated basically if there's anything else you'd better tell them now." Detective Robert DeGaetano next testified that when he discovered the scale in the kitchen cabinet, Daniels "appeared surprised. Her face kind of lit  up in amazement. She turned to the defendant and says [sic], What else is in here? You better tell them."
Defendant did not object to the testimony relating Daniels's nonverbal reaction upon discovery of the scale, but now challenges this ruling on appeal. Nonverbal conduct can be included within the definition of a "statement" bringing it into the ambit of hearsay only if the action was intended as a communication. See State v. Simmons, 52 N.J. 538, 541-42 (1968), cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed. 2d 241 (1969). On the other hand, spontaneous movements, "completely unmotivated by communicative intent," are not hearsay because they fail to qualify as statements. See e.g., State v. Williams, 97 N.J. Super. 573, 600 (Cty. Ct. 1967), aff'd, 106 N.J. Super. 371 (App. Div.), certif. denied, 55 N.J. 76 (1969). We determine no error occurred in the admission of testimony describing Daniels's look of surprise, which was not hearsay.
Defendant next maintains the police recitation of Daniels's alleged comment to him was inadmissible hearsay, or, alternatively, if admissible, error resulted because the trial court failed to advise the jury that the statement was admitted for a purpose other than its truth. See State v. Maristany, 133 N.J. 299, 309 (1993). The State suggested the statement is not hearsay either because it is a verbal act, a question, or that it was not introduced to show the truth of the matter asserted. Arguing in the alternative, the State asserts that even if the statement were hearsay, any error by admitting the testimony was harmless, considering the overall strength of its case.
We reject the State's arguments that the statement was not hearsay. The intended use of the statement was to show defendant's possession and ownership of the scale and razor blade as tools for drug distribution. There is no doubt that the statement ascribed to Daniels was hearsay, N.J.R.E. 801(c), which is inadmissible unless allowed by a stated exception.
N.J.R.E. 802. "Our rules of evidence insist that only statements subject to cross-examination, or other statements where 'circumstantial guarantees of trustworthiness' exist, should be admitted as evidence." Matter of C.A., 146 N.J. 71, 95 (1996) (quoting McCormick on Evidence § 253, at 130 (citation omitted) (4th ed. 1992)).
The trial judge applied the excited utterance hearsay exception, which is defined by N.J.R.E. 803(c)(2) as "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." See State v. Bass, 221 N.J. Super. 466, 480-81 (App. Div. 1987), certif. denied, 110 N.J. 186 (1988). The rule is "based upon the premise that the excitement caused by the observation of a startling event insures the reliability of a spontaneous statement made at or near the time of the event." State v. Long, 173 N.J. 138, 158 (2002) (quoting Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(2), at 905 (2002)). "In deciding whether there was an opportunity to fabricate or deliberate, a court should consider 'the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance.'" Long, supra, 173 N.J. at 159 (quoting State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. den., 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S.Ct. 1405, 25 L.Ed. 2d 675 (1970)). This entails a fact-sensitive analysis and requires the trial court to determine "whether the facts and circumstances reasonably warrant the inference that declarant was still under the stress of excitement caused by the event." State v. Cotto, 182 N.J. 316, 328 (2005) (quoting State v. Baluch, 341 N.J. Super. 141, 182 (App. Div. 2001)).
The record is very limited, offering few facts supporting the timing of Daniels's inculpatory out-of-court statement in relation to the ramming of the apartment door or the discovery of the scale. Events, as described, appear to be reasonably contemporaneous such that the statement may qualify as an excited utterance. If the statement is admissible hearsay and the declarant did not testify at trial, recent case law additionally requires consideration of the Sixth Amendment's Confrontation Clause, U.S. Const. Amend. VI, to determine whether the excited utterance should be admitted. See also N.J. Const. art. 1, ¶10. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed. 2d 177, 194 (2004), the United States Supreme Court held that the Sixth Amendment prohibits "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." See also Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 2228, 165 L.Ed. 2d 224, 237 (2006).
Following Crawford, in Davis, the Supreme Court held that a statement made during an ongoing emergency in order to summon aid was not testimonial. The United States Supreme Court has not directly addressed whether it would treat a statement such as that made by Daniels, which was not uttered in circumstances resembling those in Davis, as testimonial or not. But see State v. Buda, 389 N.J. Super. 241 (App. Div. 2006) (finding excited utterance to be non-testimonial), certif. granted, __ N.J. __ (2007). In any event, we do not find it necessary to determine either whether Daniels's statement constituted an excited utterance or whether it was testimonial, finding its admission, even if erroneous, incapable of producing an unjust result, given defendant's admission that the drugs were his and that they were intended for distribution.
Because defendant's trial occurred in October 2001, it is understandable that the record did not develop the factors set forth in Davis. Nevertheless, based on the evidence of defendant's guilt adduced at trial, we conclude the admission of the testimony, in any case, was harmless. Defendant attested to Daniels's lack of knowledge of and involvement with the narcotics found in her apartment, and defendant confessed to possession of the cocaine so he could sell it to "make a little money." The review of the record determines that the error, if any, was not capable "of producing an unjust result." R. 2:10-2.
The arguments presented in Points Five and Six are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's supplemental pro se submission argues that trial counsel was ineffective because his trial strategy was "ambiguous and confusing," resulting in defendant's conviction. An attorney's effectiveness is presumed, see State v. Martini, 131 N.J. 176, 322 (1993); ineffective assistance of counsel is judged by the two-pronged standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lies outside the trial record." State v. Preciose, 120 N.J. 451, 460 (1992); see also State v. Castagna, 187 N.J. 293 (2006). Thus, we decline to consider defendant's arguments at this time, preserving defendant's right to raise the arguments in connection with a petition for post-conviction relief.
Finally, we examine defendant's sentence. The court found defendant was subject to a mandatory extended term on his conviction for second-degree possession of CDS, with the intent to distribute within 500 feet of a public housing facility, park, or public building. N.J.S.A. 2C:35-7.1. Defendant was sentenced to fifteen years incarceration with a five year minimum. The State concedes the matter must be remanded for resentencing because the provisions of N.J.S.A. 2C:43-6f do not provide for mandatory imposition of an extended term after conviction under N.J.S.A. 2C:35-7.1. Additionally, reconsideration of the length of any ordered discretionary extended term, pursuant to N.J.S.A. 2C:44-39(a), must be in compliance with State v. Pierce, 188 N.J. 155, 172-74 (2006). At resentencing, defendant may present evidence of any applicable mitigating factors.
In conclusion, we affirm defendant's conviction and remanded for resentencing.