October 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALI PATTERSON A/K/A ALI A. PATTERSON, ALI-ABDUL PATERSON, IBN ADRIAN, IBN PATTERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 05-01-0053-I, 05-04-0750-I, 05-06-0520-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 2, 2007
Before Judges Winkelstein and Yannotti.
An Essex County Grand Jury indicted defendant Ali Patterson, Indictment No. 05-01-0053, charging him with second-degree aggravated assault, N.J.S.A. 2C:12-1b(6) (count one); fourth-degree unlawful possession of a weapon (an automobile), N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon (an automobile) for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); second-degree aggravated assault while fleeing, N.J.S.A. 2C:12-1b(6) (count four); fourth-degree unlawful possession of a weapon (an automobile), N.J.S.A. 2C:39-5d (count five); third-degree possession of a weapon (an automobile) for an unlawful purpose, N.J.S.A. 2C:39-4 (count six); second-degree eluding police, N.J.S.A. 2C:29-2b (count seven); fourth-degree knowingly leaving the scene of an accident, N.J.S.A. 2C:12-1.1 (count eight); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (count nine).
Prior to trial, count five was dismissed. The jury acquitted defendant of count eight, knowingly leaving the scene of an accident, and convicted him of the remaining charges. At sentencing, after some initial confusion about the charges for which defendant was convicted, the court imposed sentence on the correct convictions. The judge merged count three, possession of a weapon for an unlawful purpose, with count one, aggravated assault while fleeing; and count six, possession of a weapon for an unlawful purpose, with count four, aggravated assault. On count one, a second-degree offense, the court imposed an eight-year prison term with an eighty-five percent period of parole ineligibility. On count two, a fourth-degree offense, the court imposed a concurrent eighteen-month prison term. On count four, a second-degree offense, the court imposed a concurrent eight-year term with an eighty-five percent period of parole ineligibility. On count seven, a second-degree offense, the court imposed a concurrent eight-year term, with an eighty-five percent period of parole ineligibility. Finally, on count nine, a fourth-degree offense, the court imposed a concurrent eighteen-month prison term.*fn1
Defendant had also entered guilty pleas to an additional indictment, No. 05-04-0750, and an accusation, No. 05-06-0520.
On the indictment, defendant entered a guilty plea to third-degree possession of heroin. For that offense, the court imposed a four-year prison term. Under the accusation, defendant entered a guilty plea to third-degree unlawful possession of a weapon, a handgun, and fourth-degree resisting arrest. The court imposed a four-year prison term for the third-degree offense, and an eighteen-month prison term for the fourth-degree offense. The judge made those sentences concurrent with each other and with the sentences under Indictment No. 05-01-0053.
On appeal, defendant raises three legal arguments, all related to his trial under Indictment No. 05-01-0053:
THE ADMISSION OF HEARSAY AND INCLUDED HEARSAY TESTIMONY VIOLATED THE DEFENDANT'S RIGHTS OF CONFRONTATION UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. U.S. Const., Amend. VI; N.J. Const., Art. I, ¶ 10. (Partially Raised Below).
DEFENSE COUNSEL'S FAILURE TO PROMPTLY OBJECT TO INADMISSIBLE HEARSAY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).
INTENTIONALLY ELICITING HEARSAY TESTIMONY IN LIEU OF COMPETENT EVIDENCE ON CRITICAL FACTUAL ISSUES CONSTITUTED PROSECUTORIAL MISCONDUCT. (Not Raised Below).
The trial testimony reveals that around 9:50 p.m. on June 20, 2004, Detective Lisa Rodriguez of the Newark Police Department was off-duty, driving her personal vehicle, with then-police recruit Angel Romero as a passenger. She was driving southbound on North 6th Street, when she noticed a white or tan Hyundai Sonata in her rearview mirror. The driver of the Sonata, who she subsequently identified as defendant, was "flickering" his high beams on constantly, "so people would pull to the side or move out of the way." Rodriguez observed the Sonata hit three cars. She pulled to the side of the street and stopped, after which the Sonata twice struck her vehicle.
Rodriguez approached the driver and identified herself as a police officer. The interior light of the Sonata was on, and she observed that the driver had long "dreds" and a "lazy eye." As she approached, the driver of the Sonata put the car in reverse and drove away. Rodriguez followed the car, and found it in the driveway of a fast-food restaurant. After Romero wrote down the Sonata's plate number, Rodriguez drove off to make a report of the incident.
While Rodriguez's vehicle was stopped at a traffic light, the Sonata again bumped it from behind. Defendant got out of his car. As Rodriguez and Romero approached the Sonata, defendant recognized Rodriguez and attempted to re-enter his car. Rodriguez grabbed the Sonata's door and a struggle ensued.
Defendant pushed her away, put the Sonata in reverse and again drove off, dragging both Rodriguez and Romero fifteen to twenty feet.
Officer Romero presented substantially similar testimony to that of Rodriguez. Both officers identified defendant in court as the driver of the Sonata.
Yolanda Thornton, a former police officer and an employee of the New Jersey Department of Corrections, testified that she witnessed the second confrontation between the officers and defendant. She followed defendant's car to get the license plate number. She had a clear view of the driver of the car as the driver's window was down, or if not down, it was clear, without tint. She identified defendant in court as the driver of the Sonata.
Newark Detective Vincent Consenzo testified that following the incident, he ran a check on the Sonata's license plate; it was registered to Enterprise Rent-A-Car. Consenzo was told by the rental company that Maulaine Noel-Jeune of Union, New Jersey, had rented the Sonata. He located Noel-Jeune at her place of employment and arrested her for outstanding warrants.
While in custody at the police precinct, Noel-Jeune called both her brother and a person named "Naseer." Following Noel-Jeune's telephone conversation with Naseer, she provided information to Consenzo "of who was driving the vehicle when the assault took place." She told him it was defendant. The detective then obtained a photograph of defendant from the county jail where he was being held on other charges. Another officer placed the photograph in a photographic lineup with five other pictures. Detective Rodriguez selected photograph number four, which was defendant's picture.
Noel-Jeune was out of town on the day of the incident. She testified for the State at trial. She testified that she had rented the Sonata and had given it "right away" to a friend, Naseer Jacobs. After Enterprise informed her that the rental car had been in an accident, she and Jacobs retrieved the car and returned it to the rental company. Jacobs had told her that he lent the car to his cousin, "Ra-Ra." During her phone conversation at the police precinct, Jacobs told her that Ra-Ra had passed the car along to an "Ali," who was "locked up" at the time.
Defendant testified. He denied driving the Sonata on the night in question and claimed that he did not know Jacobs, Noel-Jeune, or anyone named Ra-Ra. He also testified that his older brother, Yusef Patterson, had previously used the name Ali. He said his brother's height, complexion, and hair-styling were similar to his.
On rebuttal, Scott Williams, a probation officer, confirmed that defendant's brother had used "Ali Patterson" as an alias; but, he had been incarcerated on the day of the incident.
Defendant's primary defense at trial was misidentification.
He claims he was not the driver of the Sonata. On appeal, he claims the hearsay testimony of Noel-Jeune and Detective Consenzo that related directly to the identification of the Sonata's driver deprived him of a fair trial.
Without doubt, the parties elicited hearsay testimony from Noel-Jeune and Consenzo during the trial. We begin with the testimony of Noel-Jeune, who was called as a witness by the State. When questioned by the assistant prosecutor about whether she was involved in the motor vehicle incident, the transcript reflects the following:
Q: And, were you involved in a motor vehicle accident with that car?
A: No, I wasn't.
Q: Was Naseer involved in a motor vehicle accident with that car?
A: From what he told me, no, he didn't.
Q: And, when were you advised that you would be responsible for the damage [to the car]?
A: Yes. I was.
On cross-examination, defense counsel questioned Noel-Jeune extensively about her conversations with Naseer.
Q: Prior to you returning the vehicle, . . . did you inquire of Naseer if he was involved in any type of motor vehicle accident?
Q: And, what did Mr. Jacobs say?
A: I asked him over the phone after I got the phone call.
Q: He denied any accident?
A: Yes; he denied.
Q: Did he--did you make any further inquiry as to whether he was always operating this vehicle or the sole operator of this vehicle?
A: Yes, I did.
Q: What did Mr. Jacobs inform you?
A: He informed me that his license is not straight. That his cousin Ra-Ra drives it, I think. I'm not sure.
Q: Now, it would be fair to say, since you realized that you were going to be held responsible for any damage to the car that you rented that you probed Mr. Jacobs as to any other drivers of the vehicle that could have been involved in a motor vehicle accident with the vehicle that you had rented?
Q: And, did you discover if anyone else operated this vehicle?
A: No. Once he told [me] his cousin, then I believed him.
Q: Okay. You understood that Mr. Jacobs had conveyed your interest in receiving compensation from Ra-Ra?
A: He called him right in front of me at the rent-a-car place when I was asked to pay the deductible. Called him on the cell phone.
A: Naseer called his cousin, the one he said he gave the car to while I was at the rent-a-car place and explained to him what the deductible was. That we need to pay it right away.
Q: This was in the presence of the Enterprise guy?
Q: And, you received assurance from Naseer that his cousin Ra-Ra would compensate you for the deductible that you had to pay?
A: He told me not to worry about it. He's going to handle it.
Q: When you say "he"?
A: Naseer. The only person I ever conversed--when I say "he," I'm speaking of Naseer.
Q: After the day you returned the vehicle and paid the deductible did you obtain any additional information as to the, any accident that the vehicle was in?
Q: From whom did you receive that information?
A: The rent-a-car guy and Naseer.
Q: Okay. And, what did they advise you?
A: They told me that whoever . . . I lent the car to hit a police woman.
Q: And, . . . you recall making any telephone calls?
A: Yes. I do. I do.
Q: To Naseer?
Q: And, you made this telephone call in the presence of police detectives down at the police station in Newark?
Q: You called Naseer?
Q: And, Naseer Jacobs again repeated to you that he had lent the vehicle to his cousin Ra-Ra?
A: Yes. No. I don't remember what he said but the whole thing was the officer was trying to tell me they [were] going to charge me for hitting a police woman. And, I wanted to let them know I did not have the car. I was away.
A: From the conversation that we had, it was just to clear me. I was trying to . . . let them know I was not the one driving. Did not have the car. But, what he was stating to me was who had the car. And, I knew after a while that Ra-Ra, he wasn't the one that had the car either.
Q: It was in this cell phone conversation from the police station that you later came to learn that Naseer had been passing this car around to different people?
A: Naseer passed the car around to his cousin Ra-Ra, from what he told me. And, his cousin passed it on to someone else.
Q: Did anyone ever ask Naseer Jacobs who Ra-Ra was?
Q: Did you come to learn anything about any of the other person or persons that RaRa lent the vehicle to that you recall renting for Naseer Jacobs?
Q: And, who was that?
A: Naseer told me, I don't remember the name. He told me he lent it to his cousin Ra-Ra. Ra-Ra let someone else drive it and the person was incarcerated at the time.
On redirect examination, the assistant prosecutor pursued the same line of questioning with Noel-Jeune:
Q: And, you said that you made a phone call to Naseer?
Q: And, that was on your cell phone?
Q: And, Naseer told you who was driving the car that hit the police officer?
A: Yes. He did.
Q: And, who did Naseer tell you was driving the car?
A: I . . . don't remember the name. He said his cousin Ra-Ra gave it to some guy and the guy that did whatever he did was in custody. He's locked up, he said. He said, the guy is locked up. We [are] trying to bail him out. That's all I remember.
Q: Did you tell us his name was "Ali?"
A: Think so.
Q: And, you told the police officers, the police officer overheard the conversation from Naseer?
A: They were in my face when I was talking.
Q: And, so . . . you told the detectives that you gave the car to Naseer?
Q: And, during the conversation with Naseer, Naseer said, gave it to my cousin Ra-Ra because I don't have a license.
All of the testimony set forth above was elicited without objection. It was not until later in the trial, when the assistant prosecutor asked Noel-Jeune whether Ra-Ra told Jacobs that defendant had the car, that defense counsel objected on the grounds of hearsay. After that objection, defense counsel, on re-cross-examination, elicited additional hearsay testimony from Noel-Jeune, again without objection.
Q: So the short answer to my question is you did not speak with or meet with RaRa?
A: Personally, no.
Q: So any information about any person or persons that Ra-Ra in turn lent the vehicle to came from Naseer Jacobs?
Q: And, the name Ali came from Naseer Jacobs?
Q: Any information that you have about Ali and Ali being incarcerated came from Naseer Jacobs?
Additional hearsay evidence was elicited during the testimony of Detective Consenzo. While the State did not elicit any hearsay testimony on direct examination, on cross-examination, defense counsel did.
Q: And, did . . . Noell-Jeune . . . tell you information?
A: She did give us information. Yes.
Q: Okay. And, she indicated, did she not, during the interview down at the North District that a friend of hers named Naseer Jacobs, she had rented the car for Naseer; correct?
A: Yeah. She indicated that she gave the car to Naseer to use.
Q: Okay. And, did you make inquiry of Miss Noel-Jeune about Naseer's name and identifiers?
A: Yeah. I mean we asked her the last name.
Q: Okay. Did you know Naseer's last name?
A: No, I don't.
Q: Armed with that information did you run a record check on Naseer Jacobs?
A: No. Not at that time. No.
Q: But, you ascertained that Naseer was a black male; correct?
Q: A little hotter on the trail of the suspect; correct?
A: Well, [Noel-Jeune] immediately indicated to us that she gave the car to Naseer. And, when she found out the car was involved in an accident, she asked about that and Naseer indicated that the gentleman by the name of Ali was operating the car when the car was involved in . . . the accident.
Q: Now, did you encourage her to make telephone contact with Naseer at the North District station house?
A: She, she advised me and Detective Iemello that she would do that.
Q: Okay. Why was that?
A: To back up her story that she gave the car to Naseer and Naseer, in turn, gave it to someone he knows by the name of Ali. And, Ali was operating the car when the car was involved in the incident with a police officer.
Q: Did you yourself speak to Naseer?
Q: Okay. And Miss Jeune actually indicated to you that she met with this person Ali?
A: She said she went along with Naseer and to meet with Ali. Yes.
Q: Okay. And, that, in fact, this meeting did occur?
A: What happened was during the . . . phone conversation with Naseer, Naseer indicated that Ali had been arrested over the weekend.
Q: And, that resulted in you pulling the 24 hour arrest report for the City of Newark; correct?
Q: Okay. And, you were looking for anyone with the name Ali that had been arrested?
Q: Based on information from this telephone conversation Miss Jeune had with Naseer?
Q: Did you pull Mr. Bob Ali's photo?
A: No. The information that we received was that the Ali that we were looking for was arrested in the North District . . . .
Q: Who did you get this information from again?
A: From Naseer.
Q: And, this was from a telephone conversation that Ms. Jeune had with Naseer?
Q: You received this information third hand. You didn't yourself talk to Naseer?
Against these facts, we examine defendant's arguments.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a fair opportunity to defend against the State's accusations." State v. Branch, 182 N.J. 338, 348 (2005) (internal quotations omitted). Though the confrontation clause of the United States Constitution, U.S. Const. amend. VI, and the New Jersey Constitution, N.J. Const. art. I, ¶ 10, do not condemn all hearsay, recognizing certain exceptions, none of those exceptions are applicable here. Id. at 348-49. The testimony of both Noel-Jeune and Detective Consenzo about what Noel-Jeune was told by Naseer concerning who was driving the Sonata on the night the officers were assaulted was rank hearsay. The issue, then, becomes whether the admission of this hearsay warrants reversal of defendant's conviction. We conclude that it does not.
It was defense counsel who primarily elicited the hearsay testimony from the witnesses. And when the State elicited hearsay testimony, defense counsel did not object. In the absence of an objection, we address the issue under the plain error standard. See R. 2:10-2. Thus, unless the error was "'clearly capable of producing an unjust result,'" we do not reverse on the ground of that error. State v. Macon, 57 N.J. 325, 337 (1971) (quoting R. 2:10-2). It is not simply the possibility of an unjust result that is sufficient to warrant a reversal; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid. We may infer from the failure to object that "the error was actually of no moment." Id. at 333.
Here, we take defense counsel's failure to object to mean that she did not consider the hearsay testimony to be adverse to her client. Notably, not only did defense counsel not object when the State elicited hearsay testimony, it was defense counsel who elicited the bulk of the hearsay responses. When the assistant prosecutor elicited hearsay testimony, it was primarily related to the same subject matter as the hearsay testimony that had been elicited by defense counsel. See State v. James, 144 N.J. 538, 554 (1996) ("When a witness testifies on cross-examination as to part of a conversation . . . the party calling the witness is allowed to elicit on redirect examination the whole thereof, to the extent it relates to the same subject matter and concerns the specific matter opened up") (internal quotation omitted); see also State v. Robinson, 146 S.W.3d 469, 492-93 (Tenn. 2004) (hearsay testimony elicited by defendant does not violate defendant's constitutional right to confrontation as discussed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004)), cert. denied, 546 U.S. 1214, 126 S.Ct. 1429, 164 L.Ed. 2d 132 (2006).
More significant, however, to our determination that there was no plain error, is the overwhelming evidence of defendant's guilt. Eyewitness testimony by Detective Rodriguez and Officer Romero, and the testimony of the independent witness, Yolanda Thornton, identified defendant as the driver of the Sonata.
Rodriguez had a direct view of defendant during her altercation with him. She leaned into his car to keep him from driving away, and they began fighting. The car's interior light was on.
She testified: "I'm literally sitting on his lap punching him." She clearly identified defendant in court as the person driving the car.
Officer Romero also identified defendant as the driver of the vehicle. He testified he was able to see who was in the car, and described the driver as a black male, with dreadlocks, wearing sunglasses. He testified that at the time he identified defendant the area was well lit, as the car was "probably right underneath" a street light.
Thornton, the independent witness, testified that as she drove by the Sonata, it appeared that the driver's window was down, and she was "definitely" able to identify defendant as the driver of the vehicle.
Given the unequivocal testimony of the three eyewitnesses, we conclude that the hearsay testimony, which we emphasize was admitted without objection and primarily elicited by defendant, did not possess the clear capacity to bring about an unjust result.
Defendant's remaining arguments are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2). We do not view the prosecutor's remarks in closing as "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). The remarks were a fair comment on the evidence.
That said, we affirm defendant's conviction without prejudice to his right to bring an ineffective assistance of counsel claim in a petition for post-conviction relief. R. 3:22-1. The ineffective assistance of counsel claim involves allegations and evidence that lie outside the trial record; therefore, defendant's challenge to counsel's effectiveness would be better served in a post-conviction relief application.
See State v. Preciose, 129 N.J. 451, 460 (1992).
We affirm defendant's conviction subject to his right to raise an ineffective assistance of counsel claim in a post-conviction relief petition. We remand to the trial court to clarify defendant's judgment of conviction under Indictment No. 05-01-0053. We do not retain jurisdiction.