March 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES J. HINTON A/K/A JANUS J. HINTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0996.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Lisa and Reisner.
Defendant James J. Hinton was convicted by a jury of the following third-degree crimes: distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3); CDS possession with intent to distribute, N.J.S.A. 2C:35-5b(3); and CDS possession, N.J.S.A. 2C:35-10a(1). He was given an extended term of ten years with five years of parole ineligibility.*fn1 He appeals from the conviction and the sentence. We affirm.
The trial evidence may be summarized as follows. At about 2:07 p.m. on February 2, 2006, Officer Daniel Newman of the Asbury Park Police Department, who was using binoculars to conduct undercover surveillance from an unmarked police car, saw defendant engage in a hand-to-hand sale of drugs. Newman first saw defendant enter a pizza parlor. Shortly thereafter, he saw two men, later identified as Rodney Ivory and Kevin Miller, approach the restaurant. Miller handed Ivory some money, and Ivory entered the pizza parlor and apparently bought drugs from defendant. According to Newman, he saw Ivory hand defendant some money and he saw defendant hand Ivory a small package of what appeared to be crack cocaine. Newman testified that he could see the transaction clearly, because the pizza parlor had a large glass front and defendant was standing near the doorway.
When Ivory emerged from the pizza parlor, Newman observed him giving Miller what appeared to be a portion of the cocaine.
Newman alerted his backup team, Officers Eddy Raisin and Sergeant Michael Barnes, who arrested Miller and Ivory and recovered a small amount of crack cocaine from each of them. They also recovered a homemade crack pipe from Ivory. After the backup team recovered the drugs from Miller and Ivory, Newman watched defendant for about another half hour to see if he would make any other drug sales, and then arrested him at about 2:40 p.m. Defendant had no drugs in his possession but had $188.92 in small bills.
Officer Raisin and Sergeant Barnes testified to their respective arrests of Ivory and Miller, and the later inventory of defendant's possessions after Newman arrested him. On cross-examination, Raisin admitted being aware that defendant had signed a harassment complaint against him. Raisin also admitted having been a witness in an earlier municipal court case in which defendant "had a whole bunch of charges on him." Later that day, defense counsel explained to the judge that he asked the question because his client wanted to show that Raisin was a witness in the municipal case "in an attempt to show some bias on the officer's part against Mr. Hinton."
The judge clarified that, in pre-trial rulings, he had not held that this information would be inadmissible, but rather had indicated that he would address it during trial on a question by question basis. However, during the colloquy, he ruled that Raisin's testimony was irrelevant to show that defendant was arrested due to police bias, because Raisin was not the officer who arrested Hinton in this case. Further, the judge ruled that admitting evidence of the other municipal charges would tend to confuse the jury. Additionally, counsel later clarified that Raisin had not actually testified against defendant in municipal court, but was scheduled to testify in the future. The judge thereafter instructed the jury to disregard any mention of the municipal court matters.
At the trial, Ivory testified in some detail that defendant sold him ten dollars worth of crack cocaine, which Ivory then shared with Miller. Ivory identified defendant in court as the person who sold him the drugs. Ivory testified that at the time he bought the cocaine, he had known defendant for about three months.
Because the defense did not interpose a timely objection, as required by N.J.S.A. 2C:35-19, the State was permitted to prove that the substance recovered by the police was cocaine by introducing a certified copy of the laboratory analysis, instead of producing the lab chemist to testify. The trial judge had initially ruled that the State would have to produce the chemist because, on the day of trial, defendant refused to sign a stipulation that the substance was cocaine. However, after ascertaining that the chemist was not available, the judge reconsidered that ruling, after learning that the State had sent the defense "the proper notice [required] under N.J.S.A. 2C:35-10 of their intention to use the laboratory certificate" but the defense had not served a timely or written objection as required by N.J.S.A. 2C:35-19.
The day before he issued the revised ruling, the judge had confirmed with defense counsel the court's understanding that "Mr. Hinton is not contesting that Mr. Ivory had taken off his person, or Mr. Miller had taken off . . . his person cocaine. He's not disputing that. He's just saying that if they had cocaine, I never gave it to them." Defense counsel replied, "[r]ight," and confirmed that he had advised his client that "it would be appropriate to sign the stipulation because it doesn't hurt his case one iota. He's saying I don't care if there was a sale or not, I had nothing to do with it." Further, just before the judge decided to admit the certificate, defense counsel again agreed on the record that the defense did not object to the certificate; that as a matter of trial strategy he never interposed unnecessary objections to such certificates; and that in this case "I have no reason to dispute it [the certificate], and it's irrelevant to my defense." After thoroughly discussing the applicable case law, and taking into account that although defendant refused to sign a stipulation as to the composition of the recovered substance, the defense did not object to the admissibility of the lab certificate, the judge ruled that the certificate would be admitted.
The defense case, which Hinton insisted his attorney present, was that defendant had filed numerous harassment charges and other complaints about police conduct, and was generally perceived as a thorn in the side of the police department. Therefore, he asked the jury to infer that the police bore him a grudge and were more likely to arrest him without sufficient evidence, or to fabricate a case against him in retaliation for his prior complaints. In addition, the defense strategy was to discredit Ivory as a criminal willing to lie in order to obtain a favorable plea agreement.
At trial, defendant testified that he was in the pizza parlor at around 2:00 p.m. on February 2, 2006, eating a meal with a friend. He denied being in possession of any drugs, selling any drugs, or even seeing Ivory on that day. He testified that the money in his pocket had been given to him by friends and relatives at his birthday celebration on January 13, 2006. Defendant also testified that he believed he had been harassed by the police, and that prior to his arrest in this case, he had filed harassment complaints against a number of Asbury Park police officers, including officers Newman and Raisin.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE IN VIEW OF THE IMPOSSIBILITY OF OFFICER NEWMAN'S TESTIMONY CREATING REASONABLE DOUBT OF DEFENDANT'S GUILT AS A MATTER OF LAW. (Partially raised below).
POINT II: THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL AND SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE. (Partially raised below).
POINT III: THE TRIAL COURT ERRED BY REFUSING TO ALLOW DEFENDANT TO INTRODUCE EVIDENCE FROM MUNICIPAL COURT PROCEEDINGS SHOWING THAT ASBURY PARK POLICE OFFICERS HAD BEEN TARGETING DEFENDANT FOR HARASSMENT. POINT IV: THE TRIAL COURT ERRED BY SUMMARILY DENYING DEFENDANT'S REQUEST TO PROCEED PRO SE BEFORE TRIAL WITHOUT QUESTIONING DEFENDANT TO DETERMINE WHETHER HE WAS KNOWINGLY AND INTELLIGENTLY EXERCISING HIS CONSTITUTIONAL RIGHT OF SELF-REPRESENTATION.
POINT V: DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY IMPROPER AND PREJUDICIAL COMMENTS IN THE PROSECUTOR'S CLOSING STATEMENT. (Not raised below).
POINT VI: THE TRIAL COURT VIOLATED DEFENDANT'S RIGHTS UNDER THE CONFRONTATION CLAUSE BY ALLOWING THE STATE TO ADMIT THE NARCOTICS LAB CERTIFICATE INTO EVIDENCE WITHOUT TESTIMONY BY A QUALIFIED EXPERT.
POINT VII: THE JUDGMENT OF CONVICTION SHOULD BE VACATED BECAUSE DEFENDANT'S TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PAR. 10 OF THE NEW JERSEY CONSTITUTION. (Partially raised below).
POINT VIII: DEFENDANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE CUMULATIVE IMPACT OF ERRORS IN THE TRIAL COURT. (Not raised below).
POINT IX: THE TRIAL COURT ABUSED ITS SENTENCING AUTHORITY BY IMPOSING A TEN YEAR EXTENDED TERM SENTENCE THAT WAS MANIFESTLY EXCESSIVE FOR A THIRD DEGREE OFFENSE.
We decline to address defendant's Point VII, claiming ineffective assistance of counsel, without prejudice to his filing a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Sparano, 249 N.J. Super. 411, 419-20 (App. Div. 1991). Having reviewed the record, we conclude that, except as addressed below, defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)2.
Defendant contends he was improperly denied the opportunity to represent himself. A defendant has a constitutional right to make an intelligent and knowing waiver of the right to counsel.
State v. Crisafi, 128 N.J. 499, 509 (1992). However, the request to self-represent must be timely, clear and unequivocal. State v. Harris, 384 N.J. Super. 29, 58 (App. Div.), certif. denied, 188 N.J. 357 (2006). Casual requests or "'occasional musings on the benefits of self-representation'" are not sufficient. Buhl v. Cooksey, 233 F.3d 783, 792 (3d Cir. 2000)(citation omitted). We conclude that defendant did not unequivocally or timely make a request to represent himself.
The issue arose on the first day of trial, just as jury selection was about to begin. After defendant addressed the court on a number of issues, including his apparent desire to have his counsel place his prior convictions before the jury even if he did not testify, defendant asked the court "would it be possible for me to go pro se at this moment, at this point?" Judge Mellaci replied that he would not permit defendant to change representation, because it would delay the trial.
However, at that point, defense counsel asked the court to clarify with defendant whether defendant, who was not planning to testify, actually wanted his counsel to cross-examine a testifying police officer about defendant's prior drug convictions. Both defense counsel and the judge then explained to defendant that they believed that course of action would be highly inadvisable. After hearing this explanation, defendant stated to his counsel "no, that's not what I want you to do." This appeared to resolve the concern that defendant had expressed about his attorney's representation, and he did not again mention the possibility of representing himself.
We conclude that defendant's question to the court about "going pro se" was simply a passing thought based on a temporary disagreement with his attorney, and that once the disagreement was resolved, defendant was satisfied to be represented by his highly experienced attorney. In that connection, we note that Judge Mellaci was extraordinarily patient with defendant, who clearly had no concept of effective defense strategy or relevant legal principles, and frequently interrupted the pre-trial proceedings with questions and statements. We also note that in arguing his new trial motion (which defendant was permitted to present himself in addition to his counsel's arguments), defendant did not complain that he was deprived of the right to represent himself during the trial.
We likewise find no merit in defendant's claim that there was insufficient evidence to support his conviction. See State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Carter, 91 N.J. 86, 96 (1982). To the contrary, the evidence of his guilt was overwhelming. Defendant contends, for the first time on appeal, that the following evidence completely undercuts the State's case: According to Newman's trial testimony, he arrested defendant at 2:40 p.m., after a continuous surveillance of about forty-five minutes. However, according to a Miranda*fn2 card signed by Newman and admitted in evidence, he also administered Miranda warnings to co-defendant Ivory at "1426" in military time, which is 2:26 p.m.*fn3 This evidence was before the jury, although no one flagged the apparent contradiction to their attention.
We cannot agree with defendant, that this one piece of evidence would have been sufficient to justify a directed verdict at the close of the State's case or dismissal at the close of the evidence. Because Newman was never confronted with the apparent timing contradiction, he had no opportunity to explain it. However, he did testify that the times listed in his report, concerning when he observed and arrested Newman, were approximate. Without more, reasonable jurors might have concluded that either the time listed on the Miranda card, or the time listed in the police report, was simply an error.
We likewise reject defendant's contention, premised on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), concerning the admission of the lab certificate identifying the cocaine. If we were properly presented with the issue, we would be inclined to conclude that the State may condition a defendant's right to require the State to produce the chemist on its case-in-chief, on defendant's posing a timely written objection to the certificate. See State v. McKnight, 52 N.J. 35, 47-49 (1968)(discussing waiver of constitutional rights through failure to follow required procedures); State v. Berezansky, 386 N.J. Super. 84, 96 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008). However, in this case we need not reach the issue, because the defense did not object to the admission of the certificate. This was a sensible litigation strategy, cogently explained by defense counsel at trial.
We also find unpersuasive defendant's claim that he was improperly precluded from developing his theory that his arrest was the result of police harassment, as evidenced by their having filed numerous prior charges against him which were dismissed. The trial judge ruled that the municipal charges against defendant were irrelevant and had the capacity to confuse the jury. We find no abuse of the court's discretion in excluding this evidence which, in addition to confusing the jury, might have precipitated a series of mini-trials on the merits of the municipal charges to determine whether they were filed in bad faith. See N.J.R.E. 403; State v. Cook, 179 N.J. 533, 567-68 (2004). Moreover, defendant was able to place before the jury his theory that the police arrested him in retaliation for his having filed harassment charges against them.
We agree with defendant that the prosecutor's summation contained improper comments concerning it being "time for [defendant] to take responsibility" for his crime. However, defense counsel did not object, and these two sentences, which were part of a lengthy summation, had no clear capacity to produce an unjust verdict. See R. 2:10-2; State v. Macon, 57 N.J. 325, 336-37 (1971). Our review of the trial transcript leaves no reasonable doubt that defendant would have been convicted regardless of the prosecutor's inappropriate comments.
Finally, we find no merit in defendant's claim that his sentence is excessive and shocking to the conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984). Both defendant and his counsel conceded at sentencing that, due to his prior record, defendant qualified for extended sentencing as a persistent offender. N.J.S.A. 2C:44-3a. Judge Mellaci scrupulously applied the principles set forth in State v. Pierce, 188 N.J. 155 (2006), in determining the sentence. We affirm substantially for the reasons set forth in his cogent oral opinion placed on the record on April 27, 2007.