December 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEREK A. CLARK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-07-798.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Skillman and Gilroy.
A jury found defendant guilty of certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b)(1). The trial court sentenced defendant to a five-year term of imprisonment during which he is ineligible for parole.
The evidence against defendant was obtained in a search of his Trenton home conducted on February 2, 2007, pursuant to a search warrant. The police discovered a locked safe in defendant's bedroom during the course of the search. Defendant gave the police the combination, and they discovered a handgun in the safe. The police also found ammunition for the gun in the safe and other locations in his home.
Defendant testified that four days before the police executed the warrant for the search of his home, a friend of his named Antwan Allison came to his house and told him he needed to put some items in defendant's safe while he went to visit his wife in the hospital. Allison identified the items as "stuff from the [shooting] range." Defendant opened the safe and Allison "put a box inside the safe." Defendant described the box as a blue gun case of the sort used to transport dis- assembled firearms. However, defendant alleged that he did not know the case contained a gun and saw the gun for the first time when it was shown to him by one of the officers who opened his safe during the course of the search. Allison also put other boxes containing ammunition in the safe, but the safe was not large enough to fit all the boxes, so Allison put some ammunition boxes at other locations in defendant's home.
Although Allison said he would pick up the items he had left in defendant's home after visiting his wife in the hospital, he did not return that day or anytime in the next four days before the police executed the warrant. Defendant testified that he tried to reach Allison by telephone during the intervening period, but was unsuccessful.
The only one of the police officers who executed the warrant called as a witness by the State was Detective Armistead Robinson, who was not present when the safe was opened.
Consequently, Robinson did not know whether the gun was contained in a box within the safe or was in open view.
On appeal, defendant presents the following arguments:
[THE TRIAL JUDGE] COMMITTED REVERSIBLE ERROR WHEN HE DENIED DEFENDANT'S APPLICATION TO ADJOURN THE TRIAL ONE DAY TO PRODUCE THE DEFENSE'S KEY OUT-OF-STATE WITNESS AT TRIAL.
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO SECURE A KEY WITNESS FOR TRIAL BECAUSE HE THOUGHT THE MATTER WAS GOING TO BE RESOLVED BY WAY OF A PLEA.
THE PROSECUTOR'S REFEENCES TO THE TEN COMMANDMENTS IMPROPERLY INCORPORATED RELIGIOUS BELIEFS INTO THE CASE AND PREJUDICED THE DEFENDANT BY BUTTRESSING THE STATE'S CASE WITH RELIGION.
We conclude that the trial court abused its discretion in denying defendant's application for a one-day continuance of the trial to afford defendant an opportunity to produce Allison as a defense witness, and that defendant made a sufficient showing of prejudice as a result of that denial to require a reversal of his conviction and a retrial. This conclusion makes it unnecessary to consider defendant's other arguments.
At the beginning of trial on Thursday, June 19, 2008, after a conference in chambers, the trial court made the following statement for the record regarding its denial of defendant's application for a continuance of the trial in order to enable him to produce Allison as a defense witness the following Monday:
The Court was . . . informed by Mr. Wearing, counsel for the defendant, that the defendant's only witness other than possibly the defendant himself, that is [Antwan] Allison . . . would be unavailable to testify until Monday of next week, Monday being June 23. This Court told the jury yesterday that this would be a one or two day case, that it would be completed on Thursday, that is, today or at the very latest on Friday. The Court is asked to carry the case over to next week or at least to allow the officer to testify. There are tremendous scheduling problems involved in that request. This Court next Monday is assigned to hear all bail matters in the courthouse. This judge is the emergent duty judge. Ordinarily, the number of bail matters are about 10 or 11. In addition, this judge must hear Megan's Law applications and the Court knows that there are about 10 of those matters to be resolved. In addition, the Court has a full calendar of status conferences, sentences and violations of probation. This judge did not arrange this schedule. This is done pursuant to the direction of the presiding criminal judge. When all is said and done, this Court may have to address as many as 75 matters in one day on Monday. It is not possible to shut down a calendar of that size.
The Court cannot move the matter for trial on Monday. The next question will be what about Tuesday. This Court for more than a month has targeted June 24 to start a trial in the matter of State v. Sean Brown. It is an aggravated sexual assault charge. It involves a young girl and the Court knows that this matter will take four to six trial days which will bring it to the eve of July 4. Trial starting on June 24, it is likely that the trial may not conclude until July 2 or July 3. To start the trial any later than June 24 is to almost insure that there will be a hiatus when we reach the July 4 weekend. Selection of a jury will be more difficult and it is compounded by the fact that pursuant to the presiding judge's scheduling, this judge is assigned to be the case management judge which means that all sorts of matters have been scheduled and placed on this judge's calendar for the week of July 7.
In short, this simple little trial which should take a matter of hours, the Court is now asked to extend into next week to allow Mr. Allison to come from Houston, Texas. This case has been on the trial list for a long, long time. Counsel and the prosecutor have known about the trial date. The Court intends to move the matter for trial. It is aware that Detective Robinson is not only retiring but he is relocating to the State of Georgia and will be moving this Sunday which is June 22, so to put the trial off means that the State has to bring Detective Robinson back from Georgia at some time and as the judge sees it here, it's a lot easier to tell Mr. Allison to get on a plane in Texas and be here tomorrow if he wishes to testify. Everybody's been on notice. The Court intends to move the trial at this time. The Court had discussions with counsel in chambers. It places them on the record at this time.
After the trial court made this statement, defense counsel, H. Lee Wearing, indicated that the prosecutor's office had made a plea offer that he thought could avoid a trial, which the prosecutor's office had withdrawn only two days before the jury was selected on Tuesday, June 17, 2008. There was then a colloquy concerning this plea offer among the court, Mr. Wearing and the assistant prosecutor assigned to try the case:
MR. WEARING: I would just like to place a couple things on the record as to your decision not to grant the adjournment for the witness. This matter has been scheduled for trial on, I believe, at least two occasions, Your Honor, and as recently as last week a new plea offer was extended to the defendant that was considered up until Friday of last week. That is to say that --
THE COURT: And what was the plea offer?
MR. WEARING: It was a flat 4. And up until Friday that had not been determined so it's not that we didn't know about the trial but we thought that possibly the plea would be accepted and that this matter may not proceed to trial.
THE COURT: Well, if that's so, why did the defendant put us through the jury selection process?
MR. WEARING: Because within that period of time they withdrew that offer.
THE COURT: All right. So we're really back where we were when the pretrial memorandum was signed?
MR. WEARING: Yes.
[Assistant Prosecutor]: That's true. If I could put on something about that plea offer. Judge, there was never a meeting of the minds in this matter. It's true that I had mentioned an offer of less than the mandatory five years to Mr. Wearing. This case is part of the Project Safe Neighborhoods prosecution team, if you will, and it requires -- if I made an offer that is less than the five mandatory years you have to serve, I end up -- I have to get permission from two different people. I spoke to Mr. Wearing last week having spoken to first the chief of the Project Safe Neighborhoods, if you will, division, and the discussions were such that I could discuss with Mr. Wearing the four years. Again, I was kind of anxious because I knew the trial was coming. I was kind of anxious to discuss that with him. It was actually Monday when I called Mr. -- the Monday before the trial when I called Mr. Wearing back about that matter saying I think that I might be able to offer four years. It's my recollection that the response was that his client still wanted probation and would I go back and seek probation. I didn't think I could do that. I waited -- then in the interim I also had to write a letter --memorandum to the deputy first assistant Kimberly Lacken in this matter to really finalize the matter because it's her decision as to whether or not this plea can be offered. In the interim I did not hear back from Mr. Wearing. Now, again, I know I was busy. I know I was busy. I know I called him and he tried to call me back. What I discovered was Deputy First Assistant Lacken said no, that can't be done. I then called and left a message with Mr. Wearing last Friday about this matter. Now I believe Mr. Wearing may have been in trial or whatever at that time, I don't know whether he got the message, and here we are at this point. There's been no indication there's ever been a meeting of the minds about this.
The trial began on the morning of June 19th and ended shortly before lunch on June 20th. The jury returned a guilty verdict after the lunch recess.
"[T]he right of an accused to present witnesses in his own defense 'is a fundamental element of due process of law.'" State v. Garcia, 195 N.J. 192, 202 (2008) (quoting Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653, 98 L.Ed. 2d 798, 810 (1988)). However, "this constitutional right must be exercised in accordance within the reasonable case management prerogatives possessed by our trial courts, which are charged with the fair and efficient operation of our criminal justice system." Id. at 203.
In State v. Dimitrov, 325 N.J. Super. 506 (App. Div. 1999), we reversed a conviction based on the trial court's refusal to allow the defendant to call a defense witness who was not identified until the first day of trial, even though we recognized that "[u]nquestionably, defense counsel's serious derogation of his reciprocal discovery obligations [had] placed the State at an unfair disadvantage[.]" Id. at 511. In determining that the defendant was entitled to a new trial at which he would be afforded an opportunity to call this witness, we stated:
The demands of due process are never more seriously tested than when a defendant in a criminal case is, for any reason, denied an opportunity to present a witness whose testimony has ostensible exculpatory value. . . . Countervailing considerations used to deny defendant that opportunity must be weighty indeed.
[I]t is axiomatic that "[b]efore invoking the ultimate sanction of barring a witness, the court should explore alternatives."
[Id. at 510-11 (citations omitted).]
The trial judge did not give adequate consideration to alternatives to denying defendant's request for a one-day continuance of the trial that would have enabled defendant to call Allison as a defense witness. Although the judge stated that he had informed the jury during jury selection that the trial would end no later than Friday,*fn1 the judge did not undertake to explore with the jury whether they could return on Monday, which would have been necessary in any event if they had been unable to reach a verdict by the close of the day on Friday. Although the judge described the other matters scheduled before him on Monday in great detail, he did not indicate that he had explored with the Criminal Presiding Judge whether some of those matters could be assigned to another judge if the trial of defendant was continued on Monday. Although the judge indicated that the State's anticipated primary witness, Detective Robinson, was moving to Georgia at the end of the week, he did not explore whether Robinson was an indispensable witness. We note in this respect that two other police officers, Detectives Phil Peroni and Ronnie Pope, also participated in the search of defendant's home, that it was one or both of those officers who opened defendant's safe, and that Robinson was not present when the safe was opened.
Consequently, assuming their availability, Pope's and Peroni's knowledge of the relevant facts may have been superior to that of Robinson.
We also note that even though defendant did not make a proffer of Allison's anticipated testimony at trial, defense counsel stated at a pretrial conference that the prosecutor's office had taken a video statement from Allison, and the assistant prosecutor did not dispute that Allison's testimony would be supportive of the defense. Under all these circumstances, the trial judge abused his discretion in refusing to grant a one-day continuance of the trial until Monday or even to explore the feasibility of such a continuance or other steps that would have enabled defendant to call Allison as a witness.
We also conclude that this abuse of discretion requires a reversal of defendant's conviction. Because a defendant has a constitutional right to present witnesses in his own defense, the failure of a trial court to grant a continuance or take other appropriate steps to enable a defendant to exercise this right require a reversal of defendant's conviction unless "the error was 'harmless beyond a reasonable doubt.'" Garcia, supra, 195 N.J. at 205 (quoting State v. Castagna, 187 N.J. 293, 312 (2006)). We recognize that even if Allison had completely corroborated defendant's testimony that Allison was the owner of the handgun, that the gun was in a box when he put it in the safe, and that Allison did not inform defendant the boX contained a gun, the jury still could have inferred from the nature of the box and the fact that Allison also put ammunition in the safe and at other locations in the house that defendant must have known that the box contained a gun and that, because he had the combination to the safe, defendant had constructive possession of the gun. However, we cannot say it is a foregone conclusion the jury would have drawn this inference. Moreover, we cannot disregard the possibility that the circumstances of Allison's ownership of the gun and its location in a box within the safe may have led the jury to acquit defendant even if it believed he was probably aware the box contained a gun.
The possible benefit to the defense of Allison's anticipated corroboration of defendant's testimony that what he saw Allison put in the safe was a blue box rather than a gun is underscored by the fact that the assistant prosecutor felt it necessary to strongly attack the credibility of that testimony in his summation:
How was this particular weapon found? The only evidence that you have -- or testimony that you have of anything about a blue box is from Mr. Clark. You must believe Mr. Clark if you want to believe that gun was in a blue box. When I questioned Detective Robinson, he indicated the gun was as it appears now. That's when he saw it. There was a back and forth between defense counsel about which officer first saw the gun or saw the evidence and which person actually picked the evidence up. Detective Robinson is the only person that lifted the evidence up. That was how it was arranged. So even if Detective Pope opened the safe and saw it there, it would have been Detective Robinson who would have picked the gun up. He indicated the gun is in the same condition now as it was when he saw it on February 2, 2007.
Sergeant Mendez looked at this gun, checked it for operability and said when it was brought to the police station the condition it's in now is the same condition as when he examined it for operability. The blue box is a fiction. The blue box and its existence is the only thing that stands between what logically would show this man clearly possessed this gun and this man having absolutely -- having no idea until Detective Robinson comes -- allegedly comes walking down and shows him the gun that it was there. There is no blue box. You will see D-1, which appears to be a transfer, a weapon transfer form, although I would suggest that when I tried to pin Mr. Clark down, he didn't know what it was. It appears to be a weapons transfer form. This again was in Mr. Clark's safe he had the combination to. What stands between this form and the inference again that he possessed the gun, what stands between that, again, is you have to accept the existence of a blue box. The fictional, imaginary, magical blue box that cuts out knowledge of everything else that's around it, that logically anybody looking at this would be able to say he possessed this.
Use your good common sense. There was no blue box. There was a gun in the safe.
As we observed in State v. Bellamy, 329 N.J. Super. 371, 377 (App. Div. 2000), "[i]t is no answer at all to say defendant would have been convicted [even if he had been allowed to call a proposed defense witness]. He is entitled to a fair opportunity to present his best defense and to engender a reasonable doubt as to his guilt." We conclude that the trial court's summary denial of defendant's request for a one-day continuance of the trial deprived defendant of this fair opportunity.
Accordingly, we reverse defendant's conviction and remand the case for a new trial.