On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-09-1197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2010
Before Judges Lisa and Baxter.
Defendant Anthony Addison appeals from an April 7, 2008 order that denied his first petition for post-conviction relief (PCR). We reject his contention that trial counsel rendered ineffective assistance due to his failure to present expert testimony on the subject of police procedures for the search of persons immediately after arrest and for the search of police patrol vehicles at the beginning of each shift. We affirm.
On the morning of March 21, 2001, defendant and his girlfriend, Rochelle Kelly, were at the home of their friend Emma Jamison in Ewing Township when Rochelle's former boyfriend and another man knocked on the door. Because Rochelle's former boyfriend had previously threatened defendant, defendant became concerned for his safety and fled. From a safe position, he observed the man forcibly remove Rochelle from the house. Because defendant did not have a cell phone and there was no telephone at Jamison's house, defendant ran to a nearby home, from which he called police.
When police arrived, defendant reported that Rochelle had been abducted and provided police with Jamison's address. He then returned on foot to Jamison's house. There, while searching the second floor for evidence of an abduction, police found a jacket containing defendant's identification and some marijuana. At that point, defendant attempted to flee. A scuffle ensued, causing one of the officers to subdue defendant with pepper spray. Officer Patrick Harney testified that in attempting to subdue defendant, he placed him in a "bear hug," and felt nothing "unusual" on defendant's person. On cross-examination, Harney explained that he felt no bulge consistent with a large quantity of cocaine.
Even after defendant was handcuffed, he remained "combative" and was "flailing about." Patrolman John Shaler testified that "it was better to get [defendant] into the [police] car and just get him out of there, get him to a secured area." Thus, Shaler and the other officers chose not to search defendant before putting him in the patrol car.*fn1 Shaler conceded that although it was "not good police procedure" to refrain from searching defendant before placing him into the patrol vehicle, "[u]nfortunately, there's [sic] situations like this that it's just not feasible, and that's a judgment call that we have to make, as police officers."
Once defendant was placed in Shaler's patrol vehicle, Shaler transported defendant to police headquarters for processing. After doing so, Shaler searched the rear of his patrol vehicle and found a baseball-size package of cocaine*fn2 "wedged underneath... [where] the back cushion and bottom cushion would meet."
On cross-examination, defense counsel asked Shaler whether it was standard operating procedure within the Ewing Township Police Department to check the back seat of the patrol car at the beginning of each shift. Shaler responded, "I can tell you I always search the vehicle before my shift. Can I say what everybody else does, I can't. I can't tell you what every police officer does. I know that I personally do."
Shaler also testified that it was his routine practice to search the rear of his patrol vehicle before beginning his shift. He stated:
Before the beginning of any shift, not just in Ewing, I'm sure it's done throughout law enforcement, any police officer before they actually get into their car, there's a series of checks you do. It may vary from department to department, but with our department, we have a whole series of checks we do; check the trunk for the oxygen, the safety equipment, the flares, we check the shotgun, we check the overall mechanics of the car, meaning the head lights, all the minor stuff, you have to check that. We check the interior of the car for any contraband or weapons that may have been left there from a previous shift. Just a whole series of checks that I'm sure all cops do. [(Emphasis added).]
Shaler insisted that on the morning in question, before beginning his shift, he had performed such a check of his patrol vehicle and found nothing in the rear seat.
In an unpublished opinion, we affirmed defendant's conviction, but remanded for entry of an amended judgment of conviction merging defendant's second-degree conviction for possession with intent to distribute a controlled dangerous substance (CDS) within 500 feet of a public park, N.J.S.A. 2C:35-7.1, with his first-degree conviction for possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(1). State v. Addison, No. A-4050-02 (App. Div. May 19, 2004), certif. denied, 181 N.J. 547 (2004).
In support of his PCR petition, defendant maintained that trial counsel was ineffective for failing to produce an expert to testify on the following subjects: 1) despite Shaler's claims to the contrary, it was not standard operating procedure in the Ewing Township Police Department to check the interior of the patrol vehicle at the beginning of each shift; 2) it was unlikely that defendant, after calling 9-1-1, would await police arrival without discarding a baseball-size package of cocaine that police allegedly later found in the back of the patrol vehicle; 3) it was unlikely that such a large package of cocaine would not be observed by police officers on the scene, or be disturbed during the pre-arrest struggle; and 4) it was highly unlikely that ...