January 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY ADDISON, A/K/A DONALD JACKSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 defendant, while in handcuffs and with his eyes stinging from the pepper spray, would be able to remove the package of cocaine from his person and wedge it into the back seat of the patrol vehicle.
To support those contentions, defendant produced an expert report from MPI Investigative Services (MPI) that contained surveillance logs, still photographs, and a video completed by an MPI investigator in October and November, 2006. According to MPI's December 21, 2006 report, its investigator, Derek Pagaduan, conducted surveillance on two different occasions of Officer Shaler emerging from his home, entering his personal vehicle, and driving to Ewing Township police headquarters. On each of those two days of surveillance, Pagaduan observed Shaler arrive at police headquarters in the morning. Although Pagaduan observed several officers enter a police vehicle and depart without ever checking the vehicle, Pagaduan made no observations of whether Shaler did, or did not, search his patrol vehicle at the beginning of his shift. Instead, the MPI report is confined to the question of whether other officers did so.
The judge denied defendant's petition, concluding that trial counsel's failure to call an expert on the subject of police procedure did not constitute ineffective assistance because trial counsel had thoroughly cross-examined Shaler on issues of police procedure. The judge found the lack of an expert to be part of trial counsel's "whole theory of the defense." The judge also concluded that any arguments regarding trial counsel's failure to properly investigate and failure to call an expert were barred by Rule 3:22-4 because such claim could have, and should have been, raised on direct appeal. The judge made the same findings concerning defendant's claims of prosecutorial misconduct.
On appeal, defendant presents the following arguments:
I. AT THE PCR HEARING, THE STATE CONCEDED THAT IT HAD MISCONSTRUED THE NATURE OF WHAT IS PLAINLY A BASIC ELEMENT OF THE APPELLANT'S PCR CAUSE -- THAT HIS COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO INVESTIGATE AVAILABLE DEFENSES TO THE MINIMAL EXTENT OF CONSULTING AN EXPERT IN POLICE WORK AND PROCEDURE, WHEN THE NEED FOR SUCH CONSULTATION WAS PLAIN; BUT THE PCR COURT ADOPTED THE STATE'S ADMITTEDLY MISDIRECTED ARGUMENT AS THE PRIMARY BASIS OF ITS OPINION
II. IN HIS PCR MOTION THE APPELLANT HAD ASSERTED THAT BECAUSE OF HIS COUNSEL'S FAILURE TO CONSULT AN EXPERT IN POLICE WORK AND PROCEDURE THE JURY REMAINED UNAWARE OF DEFICIENCIES IN THE PROSECUTION'S CASE AT A SERIES OF CRUCIAL, INTERRELATED POINTS; THE STATE'S RESPONSES TO THIS ASSERTION WERE ADOPTED IN TOTO BY THE PCR COURT, BUT WERE PLAINLY INADEQUATE AT EACH OF THESE POINTS
A. Doubtfulness of a Claimed Strict Adherence to a Departmental (if not universal) Policy of Thoroughly Checking and Searching Each Police Cruiser Before Each Shift
B. The Unlikelihood that the Appellant After Calling 9-1-1 Would Await Police's Arrival while Continuing to Hold in his Possession Rather than Simply Hiding, a Baseball-Sized Package of Cocaine
C. The Unlikelihood that Baseball-Sized Package Would Neither Be Observed by Officers on the Scene, Perceived or Disturbed During a Pre-Arrest Struggle, Nor Come Loose or Fall Out from its Secret Hiding Place on the Appellant's Person During that Struggle or Before He was Put in the Back of Police Car
D. The Mischaracterization of the Required Search of Arrestees Before Transport as Inessential Could Not Have Prevailed if an Expert in Police Work Had Been Consulted
1. The prosecution could not have prevailed in its purposeful juxtaposition of two related misrepresentations in its Closing Argument: inflating the importance of pre-shift vehicle checks, while mischaracterizing pre-transport search of arrestees as inessential
a. Simple Reference to the Ewing Police Department's Manual of Standard Operating Procedures would also have precluded use of, or exposed the falsity of this stratagem
E. The Inherent Doubtfulness of the State's Version of Events According to which the Appellant while with Hands Cuffed Behind Back and Writhing in Acute Discomfort from Pepper Spray in his Eyes, Retrieved the thitherto Firmly Secured Baseball-sized Package of CDS from its Recondite Location on his Person and Effected its Concealment in Cavity Behind Rear Seat, without Alerting the Transporting Officer that such (what would necessarily be) Transparently Purposeful Actions were Being Carried Out Under his Watchful Eyes.
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).
Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.
"[C]counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
In Point I, defendant argues that his PCR petition was improperly denied because the trial court based its opinion on a misinterpretation of defendant's PCR arguments. Namely, defendant claims that the trial court's opinion was based on the theory that trial counsel was ineffective in not calling an expert on CDS distribution to combat the State's CDS expert.
The State argues that defendant's PCR was properly denied, and although the trial court entertained this additional argument, the court issued a comprehensive oral opinion that also addressed defendant's other arguments.
While it is true that the judge did consider whether trial counsel was ineffective for not calling an expert in CDS distribution, this was not the sole basis for his opinion. The judge also considered whether trial counsel was ineffective for not consulting an expert in police procedure. That the judge may have misinterpreted defendant's PCR brief, and analyzed an argument that defendant did not intend to present, does not change the fact that the judge thoroughly evaluated all of defendant's other arguments. We thus reject the claim defendant advances in Point I.
In Point II A, defendant argues that trial counsel was ineffective because he failed to consult an expert on the issue of pre-shift inspection of police cruisers. Defendant maintains that had such an expert been produced, the expert's testimony would have undermined Shaler's claim that members of the Ewing Township Police Department routinely search their police cruisers at the beginning of each shift.
The record demonstrates that what Shaler actually said during his testimony differs from defendant's description of Shaler's testimony. During his testimony, Shaler insisted that although he always searched his vehicle before his shift began, he was unable to be certain about what every other officer did. Specifically, Shaler testified, "I can tell you that I always search the vehicle before my shift. Can I say that everybody else does, I can't. I can't tell you what every police officer does. I know that I personally do." In light of Shaler's testimony, in which he acknowledged that other officers may not search their patrol vehicles before placing a suspect inside, we fail to see how expert testimony would have provided any benefit to defendant.
What was at issue was whether Shaler searched his patrol vehicle on the morning in question. He insisted that he had done so and conceded that others might not have. The expert testimony demonstrating others did not do so was, in reality, no different from the testimony Shaler had already provided. Thus, even if counsel could be deemed ineffective for failing to produce an expert on this subject, a contention with which we do not agree, the failure to produce such testimony did not prejudice the defense. Thus, it fails to satisfy the second-prong of the Strickland/Fritz standard. We thus reject the claim defendant advances in Point II A.
In Point II B, defendant maintains that trial counsel was ineffective for failing to consult an expert to underscore the unlikelihood of defendant calling 9-1-1 and retaining possession of a package of cocaine without discarding it before police arrived. We conclude that such testimony would not have been admissible because it would have invaded the province of the jury. N.J.R.E. 702 provides, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." For expert testimony to be admissible, it must meet three requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. [State v. Kelly, 97 N.J. 178, 208 (1984) (emphasis added).]
Furthermore, "expert testimony is not necessary when the subject can be understood by jurors utilizing common judgment and experience." Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002). See also State v. Hackett, 166 N.J. 66, 83 (2001) (holding that expert testimony was not needed to show that defendant's acts of standing nude in front of a window had the tendency to debauch or impair the morals of children who observed the behavior); McColley v. Edison Corp. Ctr., 303 N.J. Super. 420, 428-29 (App. Div. 1997) (expert testimony was unnecessary to support the allegation that a wire strung between two pillars, which caused a motor bike accident, was invisible).
We thus conclude that without expert testimony, jurors were able to evaluate the question of whether it was unlikely that defendant would have failed to discard the cocaine while waiting for police to arrive at Jamison's house. In fact, defendant concedes as much when he states that this question is "common sense." As he argues in his brief:
[c]ommon sense indicates that since observation would be highly likely, and the consequences of it being observed would be catastrophic, in terms of loss of liberty, of chemically induced euphoria and/or profit, the survival instinct if nothing else would strongly impel anyone in this circumstance to hide the illicit 'treasure' during the time spent awaiting the initial arrival of the police.
We conclude that this issue was capable of being resolved by the jurors based upon their common sense and everyday experience. Therefore, expert testimony would not have been admissible because the subject matter was not "beyond the ken of the average juror." Kelly, supra, 97 N.J. at 208. Because the testimony would have been inadmissible, trial counsel cannot be faulted for not producing it. State v. Worlock, 117 N.J. 596, 625 (1990) (observing that "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel"). See also State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion"). We thus reject the claim defendant advances in Point II B.
In Point II C, defendant maintains that trial counsel was ineffective because he failed to produce expert testimony to demonstrate it was unlikely that such a large bundle of cocaine would not have been observed by officers on the scene, "perceived or disturbed during a pre-arrest struggle, nor come loose or fall out from its secret hiding place on [defendant's] person during that struggle before he was put in the back of [the] police car." We reject this claim for the same reason that we rejected defendant's claim in Point II B. As with the prior claim, this is a subject that a jury can decide without expert testimony. Such testimony is inadmissible, Kelly, supra, 97 N.J. at 208. Therefore, defendant cannot demonstrate that he was prejudiced by trial counsel's failure to produce such testimony. We thus reject the claim defendant advances in Point II C.
In Point II D, defendant contends that the prosecutor's mischaracterization of law enforcement's failure to search defendant before placing him in the police vehicle as a "judgment call" could not have succeeded had trial counsel produced an expert on police procedure. Defendant points to the Ewing Township Police Department's Manual of Standard Operating Procedures (Manual), contending that a "simple reference" to the Manual would have "exposed the falsity" of the prosecutor's claim of a "judgment call." Again, expert testimony was not needed on this subject as it was the type of cross-examination that could be accomplished without expert testimony. For that reason, the failure to produce an expert on this subject is not an instance of legal representation that falls below accepted standards. It thus fails to satisfy the first-prong of the Strickland/Fritz test. We thus reject the claim defendant advances in Point II D.
Last, in Point II E, defendant argues that trial counsel rendered ineffective assistance because he failed to produce expert testimony that would have demonstrated that it was unlikely, or even physically impossible, for a handcuffed defendant to remove a wad of cocaine from his pants and shove it into the fold of the backseat. We reject this claim for the same reasons we have rejected the claims advanced in Points II B, C and D.