July 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL HENTZ, DEFENDANT-APPELLANT.
On Appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-06-909.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Payne and Messano.
Michael Hentz was convicted in absentia of fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(2), and third-degree possession of marijuana with the intent to distribute it, N.J.S.A. 2C:35-5a(a) and N.J.S.A. 2C:35-5b(11). Following merger of the conviction for fourth-degree possession into the conviction for the third-degree crime, defendant was sentenced to an extended ten-year term of imprisonment with a five-year parole disqualifier pursuant to N.J.S.A. 2C:43-6(f). The convictions resulted from overwhelming evidence of defendant's crimes, consisting of 1.46 pounds of marijuana, as well as three scales, $12,320 in cash, and documents identifying defendant as the occupant of the premises, seized by the police in a search of defendant's apartment pursuant to a validly-issued search warrant. On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Hentz, No. A-391- 02T4 (App. Div. December 4, 2003). Certification was denied by the Supreme Court. State v. Hentz, 179 N.J. 312 (2004).
Following exhaustion of his appeals, defendant moved for post- conviction relief, and was denied that remedy without a testimonial hearing. The present appeal then ensued. In his appellate brief, defendant raises the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
A) TRIAL COUNSEL'S CONTINUED REFERENCE TO DEFENDANT'S REQUEST FOR AN ATTORNEY AT THE TIME OF HIS ARREST IMPROPERLY COMMENTED ON DEFENDANT'S RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL REQUIRING REVERSAL SINCE SUCH REFERENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B) DEFENDANT'S CONVICTION MUST BE REVERSED SINCE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE TERM "COURT ORDERED" SEARCH WARRANT BEFORE THE JURY AND/OR FAILED TO REQUEST A CURATIVE INSTRUCTION REGARDING THE TESTIMONY CONCERNING THE SEARCH WARRANT.
C) THE POST-CONVICTION COURT FAILED TO RULE ON THE ISSUE OF WHETHER OR NOT TRIAL COUNSEL WAS INEFFECTIVE ON THE ISSUE OF IMPROPER EXPERT TESTIMONY BEFORE THE JURY THAT THE SCALE FOUND WAS POSSESSED BY THE "TYPE OF PERSON WHO DEALS DRUGS."
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE SINCE COUNSEL FAILED TO RAISE REVERSIBLE ISSUES ON APPEAL.
A) APPELLATE COUNSEL FAILED TO RAISE TRIAL COUNSEL'S CONTINUED REFERENCE TO DEFENDANT'S REQUEST FOR AN ATTORNEY AT THE TIME OF HIS ARREST [WHICH] IMPROPERLY COMMENTED ON DEFENDANT'S RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL REQUIRING REVERSAL SINCE SUCH REFERENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B) DEFENDANT'S CONVICTION MUST BE REVERSED SINCE APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE APPELLATE ISSUES RELATING TO THE TERM "COURT ORDERED" SEARCH WARRANT BEING PRESENTED BEFORE THE JURY AND/OR FAILURE OF THE TRIAL COURT TO PROVIDE A CURATIVE INSTRUCTION REGARDING SAME.
C) APPELLATE COUNSEL FAILED TO RAISE THE ISSUES RAISED BY TRIAL COUNSEL REGARDING THE ADMISSION OF UNDULY PREJUDICIAL EVIDENCE INCLUDING DEFENDANT'S BOOKING PHOTOGRAPH AND DOCUMENTS CONFISCATED FROM 236 HOLMSTEAD AVENUE.
D) APPELLATE COUNSEL FAILED TO RAISE THE ISSUE OF IMPROPER EXPERT TESTIMONY IN HER BRIEF BEFORE THE APPELLATE DIVISION.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.
THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT PROCEDURALLY BAR CLAIM[S] IN POST-CONVICTION PROCEEDING.
Having considered defendant's arguments in light of the two- pronged standard for review established by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)*fn1 and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), as well as other applicable precedent, we affirm.
Defendant claims in this appeal that trial counsel was ineffective because, on cross-examination of a police witness and while trying to demonstrate that defendant had never claimed a possessory interest in the incriminating items seized, she inadvertently elicited testimony that defendant had invoked his Fifth Amendment right to silence and Sixth Amendment right to counsel during the search of his apartment. Following an lengthy description of those items by a State witness, Investigator Jeffrey Vogt, the following exchange between defense counsel and Vogt occurred:
Q: Did you ask Mr. Hentz whether any of these things belonged to him?
A: No, we did not.
Q: Did Mr. Hentz say that any of these things belonged to him?
A: No. I believe he requested that he wanted to speak to an attorney.
After cross-examination on other issues, defense counsel returned to the absence of evidence of any admission of ownership:
Q: Did he say, hey, this is my bag [containing the cash], what are you doing with it? Did he say anything like that?
A: No. I said he requested an attorney. He wasn't asked any questions.
Q: Did he say, "That's my $12,000 in cash in that bag"? Did he say anything like that?
A: No. As I stated, he requested an attorney, wasn't asked any questions.
The substance of this testimony was very briefly referenced by the prosecutor on redirect examination, when he elicited the statement that defendant had refused to speak to the police regarding the offence. Additionally, during summation, defense counsel returned to the theme of defendant's silence in the face of police questioning regarding the ownership of the seized property, which she justified by stating:
Okay, as the Judge indicated to you, Michael Hentz said nothing. Nothing. The only thing that he said is that - well, the officer testified that he asked for a lawyer. And there's nothing wrong with that.
We have seen enough television shows to know that if you say something, nine times out of ten it's going to be twisted and turned against you. We know enough from these television shows to say that if you have been charged with something, the best, smartest thing for you to do is to ask for an attorney.
In his brief on appeal, defendant notes that it would have been improper in the circumstances for the State to have introduced evidence of defendant's silence at or around the time of his arrest. See State v. Muhammad, 182 N.J. 551, 568 (2005). Defendant then argues: "the testimony that the defendant exercised his right to counsel and failed to give a statement to police when questioned, leads to the conclusion that there is a high probability that the jury improperly used defendant's silence and request for counsel (protected by the Fifth and Sixth Amendments) against him." However, the argument ignores the point of defense counsel's examination: that defendant did not acknowledge a possessory interest in the items seized.
Thus, here, the only logical conclusion to be drawn by a jury from defendant's silence was that defendant declined to provide the police with an inculpatory, not an exculpatory, statement. We recognize that the fact that prejudicial evidence has been elicited inadvertently does not render it harmless. State v. Ascolese, 59 N.J. Super. 393, 398 (App. Div. 1960). Nonetheless, because of their context, we do not regard defendant as having been harmed by these rather slight references to his silence. In light of the overwhelming evidence against him, we conclude that any deficiency in the performance of counsel arising from Vogt's responses to her cross-examination did not deprive defendant of a fair trial or prejudice his defense. Cf. State v. Elkwisni, 190 N.J. 169, 181-82 (2007); State v. Pepshi, 162 N.J. 490, 492-93 (1999). We thus decline to order a new trial on this basis. Because the failure to raise a meritless legal argument does not constitute ineffective assistance of counsel, State v. Worlock, 117 N.J. 596, 625 (1990), we also reject defendant's argument in this regard as it relates to appellate counsel.
Defendant also argues ineffectiveness of trial counsel in failing to object to testimony at trial that the police's search was conducted pursuant to a "court authorized" search warrant. Defendant likewise faults appellate counsel for failing to claim plain error in the use of that phrase. In support of his arguments, defendant relies on our decisions in State v. Alvarez, 318 N.J. Super. 137, 145-48 (App. Div. 1999) and State v. Milton, 255 N.J. Super. 514, 520 (App. Div. 1992). However, in both of those cases, warrants to search residences occupied by multiple persons were misleadingly characterized in a manner that suggested that probable cause to suspect criminal activity by the defendant, in particular, had been presented to the judge. In the present case, no such misleading comments were made. Thus, the present case resembles State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997), in which an argument similar to the one presented here was rejected. In Marshall, the Court held in addressing defendant's assertions that mention of search warrants during trial was impermissible:
We find those 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 guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.
Defendant's reliance on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992) is misplaced. That case dealt with a prosecutor's reference to a search warrant that had the capacity to mislead the jury. Defendant does not claim that any reference to search warrants in these proceedings was misleading, and we are satisfied from our own review of the record that the references of which defendant complains were accurate.
[148 N.J. at 240.]
Defendant argues additionally that trial counsel was ineffective in failing to object to testimony by the State's witness, Lt. Jeffrey Bissey, that the "type of person" who would use a scale of the type seized from defendant's residence would be a person "distributing CDS," not a user. Defendant claims that the opinion testimony was inadmissible because it addressed an ultimate issue in the case. Defendant likewise argues that the inadmissibility of the opinion should have been raised by appellate counsel. We disagree with both contentions, determining that Bissey's testimony addressed a "matter outside the ken of the average layperson" and aided the jury in understanding the import of the items seized. State v. Nesbitt, 185 N.J. 504, 515 (2006). It was thus admissible. State v. Herrera, 385 N.J. Super. 486, 492-93 (App. Div. 2006).
We also disagree with defendant's contention that appellate counsel should have argued that admission of his booking photograph at trial was error. Because defendant was absent from trial, there could be no in-court identification of the person whose residence was searched and whose arrest occurred as a result. Use of the photograph at issue, identified specifically as that taken on the night of defendant's arrest for the crimes being tried, was thus necessary to confirm the identity of the person charged. In this context, use of the photograph did not improperly suggest prior criminal activity on defendant's part. State v. Cribb, 281 N.J. Super. 156, 161-62 (App. Div. 1995). It suggested only the single arrest, of which the jury already had knowledge. Consequently, no prejudice ensued.
We find defendant's remaining arguments to lack sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). The documents seized from defendant's residence were necessary to establish defendant's occupancy of the premises. No suggestion was made by the State that any provided evidence of prior criminal activity on defendant's part or of a possible financial motivation for the crime, and we find it unlikely, in light of the prosecutor's carefully limiting statements during closing argument that the jury regarded the documents for the improper purposes that defendant now suggests. The fact that the issuance of the additional, July 13, search warrant (erroneously dated August 13) was precipitated by another undercover sale, and not some nefarious scheme, has been sufficiently established. That defendant would have accepted the State's final plea offer has not been demonstrated. And, finally, we are satisfied that trial counsel made adequate efforts to contact defendant prior to trial. His homelessness and failure to maintain communication with counsel, not any inadequacy on her part, are to blame.