On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
Following a jury trial, defendant Garfield Simpson was convicted of fourth degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10a(3) (count one); second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(10) (count two); third degree 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); and fourth degree possession of a prohibited weapon (stun gun), N.J.S.A. 2C:39-3h (count four). After merging counts one and three with count two, defendant was sentenced to an extended term of sixteen years imprisonment with an eight-year period of parole ineligibility. On count four, defendant was sentenced to a concurrent eighteen-month term. The appropriate fees, penalties, assessments and driver license suspension were also imposed.
On October 23, 2003, Paterson Police Detective Thomas Conyers was assigned to perform surveillance of 18 Belle Avenue. At approximately 6:10 p.m., Conyers observed a woman, later identified as Jamilia Jendayi, park her car and enter the residence. Conyers relayed this information to other officers by police radio.
Shortly after 7:20 p.m., members of the Paterson Police Department executed search warrants for the second floor apartment at 18 Belle Avenue, defendant Garfield Simpson, and a maroon 2000 Toyota Camry bearing New Jersey plates NRP-24A. Police Detective Virginio Formentin, one of the entry team officers, knocked on the door. When he received no response, detectives forcibly entered the second floor apartment. The apartment consisted of a living room, a hallway leading to a bedroom, a bedroom, a bathroom and a kitchen located at the far end. On entry, police noticed defendant in the doorway to the bedroom and co-defendant Jendayi in the hallway between the bedroom and the kitchen. Three other women were in the kitchen area at the rear of the apartment.*fn1
In the apartment, detectives discovered a scale box containing fifteen Ziploc bags with loose marijuana totaling over ten pounds in the hallway, five one-pound bags of marijuana in a laundry bag next to a closet, a stun gun in the bedroom, empty plastic sandwich bags and a digital scale. The officers also found letters and bills addressed to defendant and Jendayi at the Belle Avenue address.
Detectives recovered a total of $1,068 in cash from pants belonging to defendant. Detective Ronald Altmann, who participated in the execution of the search warrant, testified at trial that he was unsure if defendant was wearing the pants when the police entered the apartment or whether the pants were discovered in the bedroom. Another participating detective testified at trial that defendant was shirtless and wearing a towel. The officers placed defendant under arrest and transported him to police headquarters where he produced a driver's license bearing the 18 Belle Avenue address.
At trial, defendant proffered a third-party guilt defense. He introduced several stipulated documents into evidence, including two criminal complaints, an arrest report, and an indictment against Lashanna King, one of the women present when the search warrants were executed. King was released by police and never charged.
In addition, defendant produced Antoine Huffin, who testified that he was a member of defendant's music group and that defendant usually paid the members in cash each night they performed. In addition, Takeeya Planno testified that defendant invited her and Dion Garvey to his apartment for dinner on October 23, 2003. She explained that defendant often cooked at home and used a scale to measure food portions. Planno also testified that Lashanna King let her into the apartment and that King was defendant's roommate.
On appeal, defendant raises the following arguments:
POINT I THE TRIAL COURT REVERSIBLY ERRED IN DENYING SIMPSON'S MOTION TO PRECLUDE ANY MENTION OF THE SEARCH WARRANTS, INCLUDING THE SEARCH WARRANT FOR HIS PERSON. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
POINT II THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MULTIPLE MOTIONS FOR A MISTRIAL BECAUSE THE PROSECUTOR VIOLATED THE TRIAL COURT'S RULING TO PRECLUDE ANY TESTIMO[NY] AS TO THE FACTS AND INVESTIGATION UNDERLYING THE ISSUANCE OF THE SEARCH WARRANTS WHICH PREJUDICE WAS NOT EFFECTIVELY CURED BY THE COURT'S LIMITING INSTRUCTIONS. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
POINT III THE TRIAL COURT RENDERED A TOTALLY INADEQUATE JURY CHARGE WHEN (1) HE REJECTED SIMPSON'S REQUEST FOR HIS VERSION OF A THIRD-PARTY LIABILITY CHARGE AND (2) WHEN HE REJECTED SIMPSON'S REQUEST FOR A CHARGE TO AVOID PREJUDICE AGAINST HIM ON HIS POSSESSION OF MARIJUANA CHARGES BECAUSE OF HIS DREADLOCK HAIRSTYLE. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para 10).
POINT IV THE TRIAL COURT REVERSIBLY ERRED IN DENYING SIMPSON'S REQUEST FOR AN EVIDENTIARY HEARING REGARDING HIS MOTION FOR SUPPRESSION OF THE EVIDENCE SEIZED AT 18 BELLE AVENUE AND ALLEGEDLY ON HIS PERSON AT THE FRANKS HEARING. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Para 7 and 10).
POINT V THE TRIAL COURT SUA SPONTE SHOULD HAVE DEALT WITH THE RECUSAL ISSUE AND RECUSED HIMSELF UNDER R. 1:12-1 AND UNDER THE CODE OF JUDICIAL CONDUCT CANNONS [SIC] 1, 2 AND 3 WITHOUT PREJUDICE TO HIS POSITION ON THE LACK OF MERIT IN KAREN PICHARDO'S CONTENTIONS CONCERNING THE COURT'S ASSERTED BIAS AGAINST SIMPSON ON OCTOBER 25, 2007 WHEN THE TRIAL COURT LEARNED OF THOSE CONTENTIONS FROM SIMPSON'S RETAINED COUNSEL AND BEFORE THE TRIAL STARTED. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).
POINT VI SIMPSONS CONSTITUTIONAL RIGHTS TO BE PRESENT AT ALL CRITICAL STAGES IN HIS TRIAL WERE VIOLATED WHEN HE WAS PRECLUDED FROM ATTENDING THE OCTOBER 25, 2005 IN CAMERA CONFERENCE REGARDING THE KAREN PICHARDO CONTENTIONS. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).
POINT VII THE TRIAL COURT SUA SPONTE SHOULD HAVE DISMISSED THIS CASE AGAINST SIMPSON BECAUSE THE POLICE USED UNLAWFUL PROCEDURES TO OBTAIN THE ARREST WARRANT UNDER WHICH HE WAS ARRESTED. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para 10).
POINT VIII SIMPSON'S RETAINED COUNSEL AND HIS ASSIGNED COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO (1) MOVE TO RECUSE THE TRIAL COURT, (2) INVESTIGATE THE FACTS SURROUNDING THE ISSUANCE OF THE ARREST WARRANT AND TO MOVE FOR A DISMISSAL OF THE CASE ON THE GROUNDS OF AN ILLEGALLY ISSUED ARREST WARRANT, (3) ARGUE THE FLAWED RETURN OF THE INVENTORY ISSUES AS A BASIS FOR OBTAINING AN EVIDENTIARY HEARING ON THE SEARCH WARRANTS, (4) FOLLOW UP ON A MOTION TO SUPPRESS THE EVIDENCE SEIZED UNDER THE SEARCH WARRANTS AS A MATTER OF LAW, AND (5) TO INVESTIGATE THE RELATIONSHIP OF PAUL UHLIK, ESQ. TO THIS CASE. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
POINT IX SIMPSON'S SENTENCES WERE ILLEGAL AND MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant raises the following points:
POINT I DEFENDANT-PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF TRIAL, AND SENTENCING WHEN HIS TRIAL ATTORNEY FAILED TO MOVE TO SUPPRESS HIS ARREST AND ALL INFORMATION USED IN ATTAINING PROBABLE CAUSE UNLAWFULLY, WHICH IS A VIOLATION OF HIS 4th, 6th 14th AMENDMENT CONSTITUTIONAL RIGHTS.
POINT A DEFENDANT-PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED AS A RESULT OF THE "JUDICIAL REQUIREMENT" NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT. THEREBY, FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED & REQUIRED BY NEW JERSEY RULES OF THE COURT. R. 3:3-3 (A), (B); R. 3:3-1 (A)(1); AND, NEW JERSEY'S CONSTITUTION ARTICLE I & VII.
POINT B THE STATE HAS VIOLATED THE SEPARATION OF POWERS DOCTRINE BY ALLOWING THE ARRESTING OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION HAS BECOME CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANT AUTHORITY TO AN EXECUTIVE OFFICER.
POINT C THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST. A DEFECTIVE ARREST WARRANT ALLOWS FOR ME TO SUPPRESS THE EVIDENCE THAT WAS A PRODUCT OF THE ILLEGAL ARREST, IT DOES NOT INVALIDATE THE PROSECUTIONS ABILITY TO CONTINUE ITS PROSECUTION.
POINT D PRE-TRIAL & TRIAL COUNSEL FAILED TO OBJECT TO THE REPRESENTATION OF MY CO-DEFENDANT BY THE FORMER PROSECUTOR OF MY INDICTMENT DURING A PLENARY HEARING FOR THE "UNWAIVABLE" WAIVER OF CONFLICT.
POINT E MY PRE-TRIAL ATTORNEY DURING THE ATTEMPTED RECUSAL OF JUDGE SUBRYAN SHOULD HAVE REQUIRED THE RECORDATION OF THE HEARING "EN CAMERA". THIS FAILURE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant argues that the trial judge erred in admitting testimony of the existence of search warrants for defendant and defendant's apartment. The State maintains that evidence of the search warrants was admissible to establish that the police acted properly at the time of entry.
We review decisions concerning the admissibility of evidence according to the palpable abuse of discretion standard. State v. Carter, 91 N.J. 86, 106 (1982). "Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citing Carter, supra, 91 N.J. at 106).
Defendant relies on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992). In Milton, the defendant was charged with drug offenses based on evidence obtained from a search of a house he occupied with his parents and two brothers. Id. at 517. The defense was that the drugs found during the search belonged to one of the defendant's brothers. Id. at 518. This court concluded that the reference during the State's case to a warrant to search the house was not objectionable. Id. at 520. However, it reversed the defendant's conviction because the State also presented testimony concerning an unexecuted warrant to search the defendant's person. Id. at 519. This court concluded that such testimony was unnecessary to the presentation of the State's case and it implied that the State had presented undisclosed evidence to the issuing judge that defendant was likely to be in possession of drugs:
[T]he defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person. The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs. [Id. at 520.]
The facts in Milton, however, are distinguishable from the circumstances of this case. Moreover, our Supreme Court has squarely rejected the contention that the existence of a search warrant should be withheld from the jury in all cases. In State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). The Court stated: We find [the defendant's] claims to be without merit. They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume ...