April 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DIEVY W. MERCEDES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2008
Before Judges Yannotti and LeWinn.
Defendant Dievy W. Mercedes was charged with various narcotics offenses in seven counts of Passaic County Indictment No. 05-03-0259. He was tried to a jury, found guilty on all seven counts, and sentenced to an aggregate three-year term of incarceration, with a three-year period of parole ineligibility. Defendant appeals from the judgment of conviction entered on April 28, 2006. We affirm.
In the indictment, defendant was charged with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (count two); possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three); distribution of CDS, N.J.S.A. 2C:35-5a(1) and b(3) (count four); distribution of CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count five); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12) (count six); possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count seven). Co-defendant Daniel Mysko also was charged in the indictment with possession of CDS, N.J.S.A. 2C:35-10a(1) (count eight).
On October 11, 2005, defendant and Mysko appeared with their attorneys for a pre-trial conference. Defendant's attorney requested that the judge sever the defendants for trial, and also requested a hearing pursuant to State v. Scovil, 159 N.J. Super. 194 (Law Div. 1978), to determine whether Mysko would testify and exculpate defendant. However, Mysko's counsel told the judge that Mysko would not exculpate defendant. Mysko's attorney stated that Mysko was unable to say whether he purchased the drugs from defendant. Mysko interjected, "[y]eah, I can't say if it was or if it wasn't [defendant]." The judge directed defendant's attorney to file a formal motion for severance and for the Scovil hearing. On November 28, 2005, Mysko pled guilty.
Defendant was tried to a jury. At the trial, Officer Anthony Abate of the Passaic County Sheriff's Department testified. Abate stated that he was a detective in the anti-crime unit and was assigned to the narcotics task force. Abate asserted that on October 21, 2004, at approximately 12:30 p.m., he and Sergeant Tony Damiano were conducting surveillance in Paterson. Abate was wearing plain clothes, and his badge was inside his shirt. Abate and Damiano were riding in an undercover vehicle. Damiano was driving and Abate was in the passenger seat.
Abate stated that he and Damiano set up surveillance on East 19th Street facing 17th Avenue in Paterson. He described the location as a high-crime area. Abate said that during the surveillance, he observed a Hispanic male wearing a gray sweat shirt on the porch of the house located at 54 17th Avenue.
According to Abate, the man on the porch was "waving his hands and yelling and trying to get the attention of the cars that were driving by." Abate stated that there was no one else on the porch at the time. Abate identified defendant as the man on the porch.
Abate testified that it was a clear day, he could see "perfect[ly]," and he did not need binoculars. He stated that next he observed a white male walk across East 19th Street towards Madison Avenue. Defendant waved to the white male. Abate said that there was a fence bordering the property at 54 17th Avenue. The white male entered the fenced area, walked up the stairs to the porch, and engaged in a conversation with defendant.
Abate said that he observed the white male reach into the pocket of his pants, pull out paper currency, and hand it to defendant. Defendant took the money, unfolded it, and placed it in his pocket. Defendant walked over to the mailbox that was mounted on the house. According to Abate, defendant removed several objects from the mailbox, walked over to the white male, and handed the objects to the white male. The white male put the objects into his pocket and walked down the stairs. The man started walking towards Madison Avenue.
Abate said that he exited the police vehicle and started to walk in the direction of the white male. Abate caught up with the man near the corner of 17th Avenue and Madison Avenue. Abate removed his badge from under his shirt, identified himself as a police officer, and asked the man what he had been doing on the porch. Abate arrested the man and searched him. Abate testified that the man was in possession of two glassine envelopes of heroin. The man was placed in the police vehicle.
Abate notified Lieutenant Mike Tucker and asked that he respond to the scene to arrest defendant. According to Abate, Tucker arrived in a matter of minutes. Abate got out of Damiano's vehicle and entered Tucker's vehicle. They drove around the corner towards the house at 54 17th Avenue. Defendant was on the porch. Abate and Tucker exited the vehicle and walked up the stairs to the porch. Abate pointed out the mailbox that defendant had accessed during his interaction with the white male. Tucker went to the mailbox and Abate arrested defendant.
Abate said that defendant was in possession of one hundred and six dollars, consisting of one twenty-dollar bill, four ten-dollar bills, six five-dollar bills, and sixteen one-dollar bills. Tucker retrieved a clear plastic bag from the mailbox. The plastic bag contained fifteen smaller plastic baggies of marijuana and one glassine envelope of heroin. Abate testified that the house where defendant was arrested was within a 1000-foot radius of two schools, the Eastside High School and the Roberto Clemente School. Abate said that both were functioning schools.
Abate identified a photo of defendant that was taken about a half-hour after his arrest. The photo showed defendant in a gray sweat jacket. Abate testified that he was positive the person in the photo was the same man who was on the porch when he observed the transaction with the white male, and when he and Tucker came back and made the arrest.
Tucker also testified. He said that on October 21, 2004, he was alone on duty. He was wearing plain clothes and was in an unmarked police vehicle. Tucker said that he received a call from Abate and Damiano informing him that they had made an arrest in the area of 17th Avenue and Madison Avenue in Paterson. Tucker responded to the area in his vehicle.
Tucker stated that when he arrived, Abate and Damiano told him that they had arrested an alleged drug buyer and they knew where the dealer was. Damiano stood by in his vehicle with the buyer. Abate got into Tucker's vehicle and they drove to the house at 54 17th Avenue where Abate arrested defendant. Tucker identified defendant as the person who Abate arrested. Tucker additionally stated that he found the drug "stash" in the mailbox.
Defendant testified that on October 21, 2004, he was living at 707 East 24th Street in Paterson with his wife and their two children. At the time, defendant was working with his father making deliveries by truck to various locations throughout the United States. Defendant said that prior to October 21st, he and his father went "down South" to deliver certain goods. They returned at about 2:00 a.m. on October 21st. Defendant's father let him off at his home.
Defendant testified that he entered the house and heard a noise. Defendant thought that his wife had been "cheating" on him. They argued. Defendant said that he "realized that there was nothing going on[.]" He stated that he "calmed down and slept it off." Defendant awoke around 10:00 a.m. and called his father. He intended to have the door to the house fixed.
Defendant's friend is a carpenter who lives at 54 East 17th Avenue. At one time, defendant lived across the street at 53 East 17th Avenue. Defendant said that he intended to arrange for his friend fix his door. Defendant testified that his father dropped him off on the corner near his friend's home at around 12:00 p.m.
Defendant went to the front door of 54 East 17th Avenue. According to defendant, a few people were there but he did not know them. Defendant knocked on the door. He waited for about one or two minutes but no one answered. Defendant said that "a lot of people [were] walking around[.]" He decided to leave, and as he was walking down the stairs, there was a "commotion" and he was arrested. Defendant told the police that "you got the wrong guy."
Defendant called his father, Narciso Mercedes, as a witness on his behalf. Mercedes testified that in October 2004, he and his son delivered goods by truck. He said that their last delivery was in Alabama and they returned to Paterson in the "wee hours of the morning" on October 21st. Mercedes testified that he dropped his son off at his son's home and picked him up there at about 11:30 a.m. or 12:00 p.m. Mercedes stated that he dropped defendant off at 19th Street and 17th Avenue because defendant said that "he was going to pick up someone to do something at his house."
After dropping his son off, Mercedes went to the gas station to put gas in the car and to have the oil checked. He said that he was gone for about fifteen or twenty minutes. Mercedes testified that when he returned to pick up defendant, defendant was not there. Mercedes stated that he asked "the girls" where defendant had gone, and they informed him that defendant "had gotten arrested."
Defendant was found guilty on all charges. Defendant appeals and raises the following arguments:
THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS AND THE RIGHT TO PRESENT WITNESSES IN HIS FAVOR WHEN THE PROSECUTOR AND [THE] TRIAL COURT CREATED AN EFFECTIVE "NO TESTIFY" AGREEMENT WITH THE CO-DEFENDANT.
A. THE DEFENDANT WAS PREJUDICED WHEN THE PROSECUTOR AND THE TRIAL COURT INTERFERED WITH THE CO-DEFENDANT'S FREE CHOICE TO TESTIFY THROUGH THE COMBINATION OF A "PACKAGE OFFER" PLEA BARGAIN AND THE TRIAL COURT'S STATEMENT ON THE RECORD THAT THE DEFENDANTS WOULD BE TRIED TOGETHER.
B. THE DEFENDANT WAS PREJUDICED BECAUSE THE TRIAL TURNED ON THE IDENTIFICATION OF THE DEFENDANT AS THE MAN WHO SOLD DRUGS TO THE CO-DEFENDANT.
Having thoroughly reviewed the record, we are convinced that defendant's arguments are entirely without merit.
Defendant argues that he was denied the right to present a witness on his behalf. He asserts that the judge improperly denied his request for a Scovil hearing to determine whether he and Mysko should be tried separately. Defendant also contends that the State's offer of a "package plea" with defendant and Mysko created what was in effect an agreement with Mysko that he would not testify on defendant's behalf.
In Scovil, the court noted that in certain circumstances, joinder of co-defendants "may deprive a defendant of the testimony of a co-defendant who might be willing to testify for him at a separate trial, but is not willing to do so at a single trial." Id. at 197. The court stated that severance may be required if there is "[a] bona fide desire on the part of the defendant to use the testimony of a co-defendant;" and the court determines "that the desired witness will testify and that his testimony may be of value to the defendant so that denial of his testimony at the joint trial would prejudice him." Id. at 198-99. The court found that these principles applied not only to severance but also to the order in which the trials would proceed. Id. at 198. The court conducted an in-camera hearing to determine whether severance was warranted and to determine the order of the trials. Id. at 199.
The Supreme Court subsequently addressed these issues in State v. Sanchez, 143 N.J. 273 (1996). The Court stated that generally, defendants who are jointly indicted "should be tried together to avoid unnecessary, duplicate litigation." Id. at 290 (citing State v. Brown, 118 N.J. 595, 605 (1990)). "However, the interest in judicial economy cannot override a defendant's right to a fair trial." Id. at 282. The Court stated that Rule 3:15-2(b) "provides . . . relief from a prejudicial joinder." Ibid. The rule permits severance of defendants or offenses if "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or aaccusation[.]" R. 3:15-2(b).
In Sanchez, the Court explained that severance of defendants may be warranted because a joint trial could prevent "a defendant from obtaining the exculpatory testimony of his co-defendant." Sanchez, supra, 143 N.J. at 283. The Court noted that "[t]he severance issue frequently arises because of the co-defendant's concern that if he provides the 'exculpatory' testimony he necessarily implicates himself." Ibid.
The Court observed that the evaluation of a severance motion that is based upon the need for a co-defendant's testimony "requires a balancing of the State's interest in the economy of a joint trial and a criminal defendant's interest in presenting exculpatory evidence to the trier of fact." Id. at 290. The Court added:
To reconcile those competing concerns in a given case, the trial court must focus on the substance and quality of the proffered testimony, and attempt to ascertain the testimony's exculpatory value. The court should distinguish between credible, substantially exculpatory testimony and testimony that is insignificant, subject to damaging impeachment, or unduly vague, conclusory or cumulative. Where the testimony rendered unavailable by a joint trial is not substantially exculpatory, a defendant has not suffered cognizable prejudice for the purpose of Rule 3:15-2(b). Where, however, the proffered testimony is likely to be significantly exculpatory, denying the defendant's severance motion could be highly prejudicial to the defendant, and potentially could lead to the conviction of an innocent person. [Id. at 291.]
The Court added that these "same principles apply when a co-defendant's offer to testify is conditioned both on the severance motion being granted and on his own case being tried first." Ibid. The Court commented that "if the proffered testimony is substantially exculpatory, the court should accommodate a co-defendant's reasonable request regarding the timing of the separate trials unless there is a compelling reason not to do so." Id. at 292 (citing Scovil, supra, 159 N.J. Super. at 199-201).
The Court therefore held that a trial court should grant a motion to sever defendants for trial if it is "reasonably certain that (1) the defendant will call his co-defendant as a witness in a separate trial; (2) the co-defendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his own trial; and (3) the co-defendant's proffered testimony will be credible and substantially exculpatory." Id. at 293.
In addressing defendant's arguments in this case, we note initially that the judge did not refuse to conduct a hearing to determine whether defendant and Mysko should be tried separately. As we pointed out previously, defense counsel raised the issue at the pre-trial conference and the judge directed counsel to file a formal severance motion and a request for a hearing. Defense counsel did not file that motion. In any event, the severance issue became moot when Mysko pled guilty.
In addition, we note that, contrary to defendant's assertions, Mysko's testimony would have had little, if any, exculpatory value. Mysko stated at the pre-trial conference that he could not say whether defendant was the person who sold him the drugs. Although defendant's position at trial was that he was not the person who sold Mysko the drugs, Mysko would not have provided any direct support for defendant's assertion. Simply put, Mysko's testimony was not "substantially exculpatory." Ibid.
Furthermore, defendant contends that the State's offer of a "package plea" to both defendants operated as a "no testify" agreement because it left Mysko "with silence as the most attractive option to obtain the most favorable plea for himself." However, Mysko pled guilty without any agreement by the State. There is absolutely no support in the record for defendant's assertion that the "package" offer effectively created a "no testify" agreement with Mysko.
Rather, the record establishes that Mysko apparently was available and could have been called by defendant as a witness on his behalf. The transcript of the trial includes the following colloquy between defendant and his attorney, which took place out of the presence of the jury:
[DEFENSE COUNSEL]: You and I discussed on numerous occasions whether or not we want to call this alleged buyer, Daniel Mysko, as a witness in this case, have we not?
THE DEFENDANT: Yes, we have.
[DEFENSE COUNSEL]: And we discussed all the different possibilities of what he would testify to and what we could expect to gain from his testimony, et cetera, have we not?
THE DEFENDANT: Yes, we have.
[DEFENSE COUNSEL]: And, as a matter of fact, we discussed it yesterday after four [o'clock] and again this morning; is that correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Based upon all of that, I gave you my opinion that I would rather not call him as a witness; isn't that correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And . . . I told you that you have to make the final decision; I can't make the final decision as to whether or not to call this witness, right?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And your decision was to -- you agreed with me not to call him as a witness; is that correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: You understand that?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And you understand that if you want me to call him as a witness, even though I thought it was not in your best interests, I told you -- I think the words I used to you was I don't have a crystal ball. It's your final decision. And if you want to call him, I will definitely call him as a witness. Do you understand that?
THE DEFENDANT: Yes, sir.
Thus, the record makes clear that Mysko did not testify in this case because defendant decided that he did not want his attorney to call Mysko as a witness.
We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
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