February 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IVAN L. BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-12-00795-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 18, 2007
Before Judges Yannotti and LeWinn.
Defendant was indicted for third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)3; and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Following a two-day trial, a jury convicted him on both counts. At sentencing, the trial judge merged count two into count one and sentenced defendant to a four-year term of imprisonment.
On appeal, defendant raises the following issues:
I. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL
A. Trial counsel was ineffective as a result of his failure to file relevant and necessary pretrial motions to suppress evidence, compel revelation of the use of confidential informants, and bar statements given in derogation of Defendant's Fifth Amendment privilege against self-[incrimination].
i. Any and all evidence seized as a result of the arrest of the defendant should have been the subject of a suppression motion filed before trial.
ii. Since he was questioned in custody, the police should have immediately informed Defendant of his Fifth Amendment rights, pursuant to Miranda, before questioning him.
iii. An application should have been made to determine whether or not a confidential informant was involved in the investigation.
B. The Defendant's conviction should be reversed because of trial counsel's failure to make evidentiary objections and conduct effective cross-examination, which, when taken together, had the clear capacity to affect the entire outcome of the case by misleading the jury.
i. Trial counsel failed to make timely objections to prejudicial hearsay evidence presented by the State.
ii. Defendant's trial counsel failed to adequately cross-examine the State's witnesses on numerous aspects of the testimony presented regarding the Defendant's arrest.
II. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY AND DEFENDANT'S CONVICTION MUST BE REVERSED
A. The prosecutor compromised the Defendant's Fifth Amendment right to remain silent.
B. The prosecutor's closing comments were improper and raised a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SUSTAINING THE STATE'S OBJECTIONS DURING THE RE-CROSS EXAMINATION OF DETECTIVE LAMBERT
Defendant's multiple ineffective assistance of counsel issues raise a threshold inquiry as to whether the trial record enables this court to address such claims. "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because [they] involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). It is only "when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, [that] appellate courts may consider the issue on direct appeal." State v. Castagna, 187 N.J. 293, 313 (2006).
An example of an "adequately developed record" enabling review on direct appeal is in State v. Allah, 170 N.J. 269, 285 (2002), where the Supreme Court found that the trial record "disclose[d] the facts essential to [defendant's] ineffective assistance claim." In that case, counsel had failed to raise a meritorious double jeopardy defense by pre-trial motion as required by Rule 3:10-2(c), thereby waiving defendant's right to present such a defense at trial. At oral argument before the Court, "all counsel acknowledged that the failure to file the double jeopardy defense motion was due to attorney negligence. No assertion of strategy complicate[d] this analysis." Allah, supra, 170 N.J. at 284-85.
By contrast, the trial record here fails to disclose facts essential to most of defendant's ineffective assistance claims. With the exception of the motion to suppress evidence found on defendant's person at the time of his arrest, which we discuss below, we are unable to address any other ineffective assistance claims because they all involve "allegations and evidence that lie outside the trial record." Preciose, supra, 129 N.J. at 460.
For example, regarding trial counsel's alleged failure to move to suppress defendant's statements while in custody, the statement at issue was defendant's explanation to the police for the $1750 in cash found in his possession at the time of his arrest. Defendant told the police that he received it from a recording studio. In his brief on appeal, counsel concedes that "the actual statements given by Defendant may not have been initially seen as incriminating," but contends the use of those statements at trial inured to defendant's detriment. Trial counsel may also have considered defendant's statements nonincriminating and, thus, made a strategic decision not to pursue a suppression motion. Therefore, we cannot say the trial record is "adequately developed" to enable us to consider the Miranda-related ineffective assistance claim on direct appeal.
Similarly, we find the record "inadequate" to assess the ineffective assistance claims relating to a possible confidential informant, the failure to make certain objections, and inadequate cross-examination of certain witnesses. State v. Dixon, 125 N.J. 223, 262 (1991). Defendant is free to raise these ineffective assistance of counsel claims on a petition for post-conviction relief, pursuant to R. 3:22-1 to -12. Preciose, supra, 129 N.J. at 460.
Regarding defendant's claim that counsel was ineffective for failing to make a motion to suppress, we find the record "is sufficient to decide the Fourth Amendment issues." State v. O'Neal, 190 N.J. 601, 614 (2007). We conclude the record supports the finding that defendant was subject to a lawful "investigatory stop" as sanctioned by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968) and O'Neal, supra, 190 N.J. at 611-12. His ensuing arrest and the search of his person were also lawful.
Two seasoned police officers, Detective Sergeant Thomas Keywood and Detective Chris Lambert, were conducting surveillance at a location of suspected ongoing drug activity. While seated in an unmarked vehicle in a parking lot during daylight hours, the officers observed defendant drive his car into the lot and park about twenty feet away, while talking on his cell phone. After about five minutes, during which Lambert observed defendant "mov[ing] his head several times to look in the area . . . like he was expecting a person," another individual approached defendant's car and spoke to him through the window. A second male approached and got into the back seat of the car without speaking to defendant. Lambert then observed defendant reach his right hand into the back seat in a closed fist and appeared to "place or give the subject in the back of the car an object." Defendant then "came back up with an open hand."
Based on his experience and training, Lambert suspected he had just witnessed a drug transaction. He and Keywood immediately approached defendant's car. Defendant "became extremely nervous" when he saw the officers. Lambert looked into defendant's vehicle and observed plastic bags on the front passenger seat; the contents of those bags later tested positive for crack cocaine. Defendant was placed under arrest and subjected to a search that revealed the $1750 cash on his person.
An "investigatory stop" permits law enforcement officers to detain an individual temporarily for questioning. Terry, supra, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906.
[A] police officer may conduct an investigatory stop if, based on the totality of the circumstances, there is a reasonable and particularized suspicion to believe that an individual has just engaged in, or is about to engage in, criminal activity. [State v. Maryland, 167 N.J. 471, 486-87 (2001).]
Here the police officers encountered defendant in an area they had under surveillance for the very reason that it was a location suspected of ongoing drug activity. In that setting, one of the officers observed what he believed to be a drug transaction occur between defendant and an individual who had entered his car with no preliminary conversation. Under the "totality" of those circumstances, we find that the officer's "belief" that defendant had just engaged in criminal activity stemmed from a "reasonable and particularized suspicion."
Having detained defendant pursuant to a lawful "investigatory stop," and having placed him under arrest for the suspected drug transaction as well as for possession of the suspected narcotics observed on the front seat of his car, the search of defendant's person was also lawful as incident to that arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1969); State v. Pierce, 136 N.J. 184, 213-14 (1994)(affirming "the right of a police officer, following a valid custodial arrest . . . for a criminal offense, to conduct a search of the person of the arrestee solely on the basis of the lawful arrest").
We conclude, based on the foregoing, that a lawful "investigatory stop" led to defendant's arrest for suspected narcotics activities; and the search of defendant's person was incident to that arrest. Therefore, we find no merit to his Fourth Amendment claim. Thus, his ineffective assistance claim based on this issue "would have failed. It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" O'Neal, supra, 190 N.J. at 619.
Defendant's remaining two claims of trial error are without merit. His complaint about the prosecutor's comments to the jury must be assessed under the "plain error" standard, as there was no objection below. We do not find the prosecutor's comments on defendant's dress or on the money found in his possession to have been "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (19671).
Nor did the prosecutor improperly comment on defendant's failure to testify. Rather, the remark at issue was about proving intent. The prosecutor told the jury: "Unless we have the defendant--any defendant--not Mr. Brown--any defendant get on the stand and admit that was his intent or that he knowingly did something, the State's never going to be able to prove that . . . unless we present another witness who says what he knows[.]" We reject defendant's assertion that this comment "compromised" his Fifth Amendment right to remain silent.
Finally, we find no reversible error in the trial judge's limitation on counsel's re-cross examination of Lambert. Counsel's questions clearly exceeded the scope of re-direct examination. Therefore, the judge's exclusion of those questions did not constitute an abuse of discretion.
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