October 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
YOEL RAMIREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-03-0542.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2009
Before Judges Lisa and Baxter.
Defendant Yoel Ramirez appeals from a June 20, 2008 order that denied his first petition for post-conviction relief (PCR). Defendant argues that he was denied the effective assistance of counsel during the hearing on his motion to suppress when, due to an alleged conflict of interest, his attorney failed to call as a witness a person whom the attorney had previously represented in an unrelated matter years earlier. We affirm.
In March 2001, a Monmouth County grand jury returned a thirteen-count indictment charging defendant with, among other things, first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(1); related second- and third-degree drug distribution offenses; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree weapons possession during commission of a CDS crime, N.J.S.A. 2C:39-4.1a; and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b.
Defendant filed a motion to suppress. At the hearing, the State presented Lieutenant Salvatore Garrone of the Monmouth County Sheriff's Department, who testified that on November 2, 2000, he and Officer Leonard Maxfield were enroute to Asbury Park to investigate active warrants when they received a radio transmission directing them to meet with bail bondsmen concerning the whereabouts of co-defendant Jackie Small, who was the subject of two outstanding fugitive warrants.
Garrone and Maxfield arranged to meet the bail bondsmen at a nearby car dealership, where the bondsmen advised them that Small could be located in a second-floor apartment on Third Avenue in Asbury Park. According to Garrone, the bondsmen "had also developed other information involving illegal narcotics activity and possibly weapons involvement" in the apartment. Garrone and Maxfield waited outside the subject premises while the bondsmen took Small into custody. As the bondsmen led Small outside, Garrone observed defendant standing in the front doorway of the building. At that moment, one of the bail bondsmen informed Garrone that "there's drugs all over the place inside." Immediately after hearing the bondsman make that remark, defendant abruptly turned around and went back inside.
Garrone and Maxfield followed defendant into the building, up a flight of stairs and into the first-floor bedroom where they observed defendant sitting on a bed next to a plastic bag containing a white powdery substance, which was on a night table next to him. Garrone observed other substances that appeared to be CDS in a second bedroom. Directing the beam of his flashlight onto a rubber container, from which a strong smell of marijuana was emanating, Garrone was able to see a nine millimeter semi-automatic handgun.
At that point, defendant ran from the building, but was apprehended. Garrone prepared an affidavit in support of a request for a warrant authorizing a search of the entire second-floor apartment. After a judge issued the search warrant, Garrone, Maxfield and a number of sheriff's officers who had by then responded to the scene, conducted a search of the premises, which yielded additional CDS and currency.
At the conclusion of the suppression hearing, Judge James Kennedy denied defendant's motion to suppress, concluding that the conduct of the officers was objectively reasonable and was supported by exigent circumstances and probable cause. Defendant thereafter entered a negotiated plea of guilty to the first-degree drug distribution charge, reserving his right to challenge on appeal the denial of his motion to suppress.*fn1
In a per curiam opinion, we affirmed the denial of defendant's motion. State v. Ramirez, No. A-1407-02 (App. Div. April 1, 2004). We agreed with Judge Kennedy's conclusion that it was reasonable for Garrone to believe that defendant was a potential new suspect who would attempt to destroy the drugs. Id. at 16. In particular, we reasoned that defendant's position outside the building, and his abrupt re-entry once he heard the bail bondsmen tell Garrone about the presence of narcotics inside, provided a reasonable basis to conclude that defendant would attempt to destroy the CDS unless law enforcement attempted to secure the premises to prevent him from doing so. Ibid. We also held that Garrone's knowledge of the possibility of weapons inside justified securing defendant and conducting a "protective sweep of the premises" to "insure that the evidence would not be destroyed and the officers' lives would not be placed in danger." Id. at 18. In sum, we concluded that police acted reasonably; the information provided by the bondsmen concerning the presence of CDS and weapons in the residence, when combined with defendant's abrupt re-entry of the building, when he heard the bondsmen tell police what they had observed, provided exigent circumstances and probable cause for the initial warrantless entry. Id. at 18-19. Defendant's petition for certification was denied. State v. Ramirez, 193 N.J. 587 (2008).
Defendant filed a timely PCR petition, in which he asserted that because trial counsel had represented one of the bondsmen, Jerry Stevens, on a simple assault charge some five years earlier, counsel had an irreconcilable conflict of interest that so compromised the representation counsel provided to defendant at the suppression hearing as to deny him the effective assistance of counsel.
At the conclusion of the PCR hearing, Judge Mellaci denied the petition, concluding that: 1) nothing in the transcript of the suppression hearing demonstrates that it was Jerry Stevens who told police that there were drugs "all over the place inside"; 2) defendant did not submit a certification from trial counsel establishing that he or his firm in fact ever represented Stevens; 3) even if trial counsel or his firm had represented Stevens in the earlier and unrelated matter, defendant did not establish a conflict of interest because counsel's representation of Stevens had concluded long before he began to represent defendant, and therefore there was "no direct adversity or actual conflict of interest"; 4) the issue at the suppression hearing was not, as defendant claimed, whether Stevens's and the other bondsmen's information about CDS in the apartment was accurate, but instead whether Garrone acted reasonably when he relied on the information provided by the bondsmen, along with his own observation of defendant's abrupt flight inside; and 5) a later demonstration that Stevens or the others were not credible would not have diminished Garrone's reasonable basis for accepting the bondsmen's information at the time he did so.
On appeal, defendant raises the following claims:
1. A DEFENDANT'S ASSERTION THAT HIS TRIAL ATTORNEY FAILED TO INVESTIGATE A CLAIM OR PURSUE A DEFENSE DUE TO A CONFLICT OF INTEREST REQUIRES AN EVIDENTIARY HEARING BECAUSE, IF TRUE, HIS TRIAL ATTORNEY'S CONDUCT PRECLUDES HIM FROM RECEIVING A FAIR TRIAL.
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Fritz, supra, 105 N.J. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
The applicable Rules of Professional Conduct specify that a conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. [R.P.C. 1.7(a).]
Moreover, R.P.C. 1.9 prohibits an attorney who has previously represented a client from thereafter representing another client "in the same or a substantially related matter." In light of those two Rules, we agree with Judge Mellaci's conclusion that because trial counsel's representation of Stevens had occurred during an unrelated simple assault matter that had concluded five years before counsel commenced his representation of defendant on the indictment,*fn2 counsel's representation of Stevens had no capacity to interfere with counsel's obligation to provide unfettered loyalty and zealous representation to defendant.
Moreover, we reject defendant's argument that trial counsel's prior representation of Stevens prevented him from using Stevens's alleged prior acts to defendant's advantage. Contrary to defendant's contentions on appeal, any attempt at impeaching Stevens through the use of his alleged prior bad acts would have been fruitless. Specifically, N.J.R.E. 609 specifies that an arrest not resulting in a conviction is inadmissible for impeachment of a witness. In addition, N.J.R.E. 404(b) instructs that evidence of "other crimes, wrongs, or acts" is not admissible to demonstrate that a person is generally inclined to act in conformity with such conduct.
Perhaps the most compelling reason for our rejection of defendant's argument that trial counsel had an impermissible conflict of interest lies in defendant's failure to establish that Stevens would have provided favorable testimony had he been called. As we held in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), far more is required than what defendant has presented here. Unless a defendant provides an affidavit from the proposed witness in which the witness describes in detail the testimony he would have presented had he been called to testify, we will not entertain a defendant's argument that the witness would have provided favorable testimony. Ibid. Here, because defendant did not present an affidavit or certification from Stevens, we conclude that defendant failed to demonstrate that Stevens would have provided favorable testimony.
Finally, as the State correctly argued and Judge Mellaci properly concluded, even if information developed at the suppression hearing showed, after the fact, that the information provided by the bondsmen at the scene may have been incorrect, that would not have rendered the search unconstitutional. The issue before Judge Kennedy at the suppression hearing was whether, in light of the information police received from the bondsmen and their own observations of defendant's conduct, the initial warrantless entry was supported by probable cause and exigent circumstances. A later demonstration that the bondsmen's information was unreliable, had that been established, would not have altered the outcome of the suppression hearing. See State v. Davis, 104 N.J. 490, 504 (1986).
Thus, not only has defendant failed to demonstrate that counsel's performance was deficient, he has also failed to demonstrate that any such ineffective representation altered the outcome. Consequently, Judge Mellaci's denial of defendant's PCR petition was based upon a correct application of the controlling precedents to the facts before him.