June 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES HAMILTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-03-0037-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 10, 2010
Before Judges Reisner, Yannotti and Chambers.
Defendant Charles Hamilton was tried before a jury, and found guilty of first degree distribution of a controlled dangerous substance (CDS), specifically heroin, in a quantity of five ounces or more, contrary to N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and N.J.S.A. 2C:2-6, as well as other offenses. Defendant challenges his conviction and the sentences imposed. We affirm.
Defendant was charged in 05-03-0037-S with first degree conspiracy to engage in racketeering, N.J.S.A. 2C:41-2(d) and N.J.S.A. 2C:5-2 (count one); first degree racketeering, N.J.S.A. 2C:41-2(c) (count two); first degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count three); first degree distribution of a CDS, heroin, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and N.J.S.A. 2C:2-6 (count four); third degree distribution of a CDS, heroin, within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:2-6 (count six); second degree possession of a CDS, heroin, with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(2) and N.J.S.A. 2C:2-6 (counts eight and fourteen); third degree possession of a CDS, heroin, with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(3) and N.J.S.A. 2C:2-6 (count nine); second degree possession of a weapon during the commission of certain crimes, N.J.S.A. 2C:39-4.1(a), N.J.S.A. 2C:35-5 and N.J.S.A. 2C:2-6 (counts ten, eleven, twelve, thirteen, fifteen, sixteen and seventeen); fourth degree unlawful purchase of a handgun, N.J.S.A. 2C:39-10(a) and N.J.S.A. 2C:2-6 (counts twenty, twenty-one, twenty-two, twenty-three, twenty-four and twenty-five); second degree money laundering, N.J.S.A. 2C:21-25(a) (count twenty-seven); and first degree money laundering, N.J.S.A. 2C:21-25(b) (count twenty-eight).
Defendant was tried before a jury, which found him guilty of conspiracy to commit racketeering (count one), racketeering (count two), distribution of a CDS (count four), possession of a weapon during the commission of certain crimes (counts fifteen, sixteen and seventeen) and money laundering (count twenty-seven). The jury was unable to reach a unanimous verdict on counts three, eight, nine, ten, eleven, twelve, thirteen and fourteen. The court thereafter denied defendant's motion for a new trial.
The court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced defendant on count four to life imprisonment, with a twenty-five year period of parole ineligibility. The court merged count one with count two, and sentenced defendant on count two to fifteen years of incarceration, with a five-year period of parole ineligibility, to run consecutively to the sentence on count four. The court imposed concurrent, ten-year sentences on counts fifteen, sixteen and seventeen; and a concurrent five-year sentence on count twenty seven. The court entered a judgment of conviction dated February 21, 2008, and this appeal followed.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL COURT DEPRIVED MR. HAMILTON [OF] HIS CONSTITUTIONAL RIGHT TO COUNSEL BY UNREASONABLY DENYING HIM HIS RIGHT TO COUNSEL OF HIS CHOICE
THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY CONCERNING THE ELEMENTS OF POSSESSION OF A FIREARM WHILE COMMITTING CERTAIN DRUG CRIMES
THE TRIAL COURT ABUSED ITS DISCRETION IN THE MANNER IN WHICH IT RESPONDED TO QUESTIONS FROM THE JURY DURING ITS DELIBERATIONS
A. The trial court, in response to a request for a readback of testimony, only provided the jury with a readback of direct testimony
B. The trial court failed to recite jury question on the record
C. The trial court erred in providing a written charge
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNT 4 CHARGING MR. HAMILTON WITH DISTRIBUTION
THE VERDICT ON COUNT 4 SHOULD BE REVERSED AS THE JURY WAS CHARGED ON ACCOMPLICE LIABILITY ONLY AND NOT CONSPIRACY LIABILITY
THE VERDICTS ON COUNT 1, COUNT 2 AND COUNT 4 WERE AGAINST THE WEIGHT OF THE EVIDENCE
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL
THE TRIAL COURT ERRED BY IMPOSING UPON THE DEFENDANT A SENTENCE FAR MORE SEVERE THAN THAT IMPOSED ON ANY OF HIS CO-DEFENDANTS, SPECIFICALLY WITH REGARD TO HIS SENTENCE ON COUNT FOUR
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO FIND AN APPLICABLE MITIGATING FACTOR (NOT RAISED BELOW)
Defendant first argues that he was denied his constitutional right to counsel of his own choosing. We disagree.
Although an accused in a criminal case has a constitutional right to counsel of his or her own choice, the right "'cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice and deprive such courts of the exercise of their inherent powers to control the same.'" State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.) (quoting Smith v. United States, 288 Fed. 259, 261 (D.C. Cir. 1923)), certif. denied, 101 N.J. 266 (1985). "A defendant desiring to exercise the right to choose his own counsel must do so with reasonable diligence." Ibid. (citing State v. McCombs, 171 N.J. Super. 161, 165 (App. Div. 1987), aff'd, 81 N.J. 373 (1979)). "[W]hen a defendant fails to act expeditiously in obtaining counsel of his own choice, the trial court must have the power to 'do what is reasonably necessary to meet the situation.'" Ibid. (quoting State v. Yormark, 117 N.J. Super. 315, 340 (App. Div. 1971), modified in part, 61 N.J. 202 (1972), cert. denied sub nom., Perwin v. New Jersey, 409 U.S. 862, 93 S.Ct. 151, 34 L.Ed. 2d 109 (1972)). If a defendant seeks to change counsel, "[t]he procedure that may generally be employed" is to allow "a reasonable adjournment to permit the defendant to retain counsel of his own choice." Furguson, supra, 198 N.J. Super at 402.
However, the grant or denial of the adjournment "rests within the sound discretion of the trial court[.]" Ibid. "[T]he exercise of that discretion will not constitute reversible error in the absence of a showing of an abuse of discretion causing defendant a manifest wrong or injury." Ibid. (citing State v. Lamb, 125 N.J. Super. 209, 213 (App. Div. 1973); State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)).
We are satisfied that the trial court did not abuse its discretion by denying defendant's request for an adjournment so that he could retain new counsel. The record shows that Maria Noto had represented defendant since shortly after his arrest in June 2004. Lawrence Washburne later joined Ms. Noto's firm. Ms. Noto was out of the office from January until April 2006 for medical reasons and Mr. Washburne appeared with defendant in court two or three times.
Defendant was aware as early as April 2006 that Mr. Washburne would be representing him at the trial in this matter. It appears that Ms. Noto was scheduled to begin another trial on the trial date in this case. Ms. Noto and Mr. Washburne represented to the court that defendant had agreed to have Mr. Washburne act as his counsel.
In addition, defendant did not inform the court that he did not want either Ms. Noto or Mr. Washburne to represent him until the eve of trial. The court noted that the trial date had been set for "many, many months" and it appeared that defendant was merely "looking for a way to adjourn this trial."
The court also noted that Mr. Washburne had considerable experience "on both the defense side and the prosecutor's side" and would provide defendant "very fine representation." The record further shows that if the matter had been adjourned so that defendant could retain new counsel, the trial would have been delayed for a considerable period of time. As we stated in Furguson,
[w]hen a defendant applies for an adjournment to enable him to substitute counsel, the trial court must strike a balance between its inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice, on the one hand, and the defendant's constitutional right to obtain counsel of his own choice, on the other.
Furguson, supra, 198 N.J. Super. at 402.]
We are satisfied that, in this case, the trial court struck the proper balance. We are also satisfied that the denial of defendant's adjournment request did not cause him "a manifest wrong or injury." Ibid. (citing Lamb, supra, 125 N.J. Super. at 213; Smith, supra, 87 N.J. Super. at 105).
Next, defendant argues that the trial court failed to correctly instruct the jury on the charges in counts fifteen, sixteen and seventeen.
In those counts, defendant was charged with the knowing possession of certain weapons while in the course of committing a drug offense in violation of N.J.S.A. 2C:35-5. The drug offenses referred to in these counts were the unlawful possession of CDS with intent to distribute, as charged in count fourteen. It is undisputed that count fourteen pertained to drugs seized at 12 Hawthorne Place in East Orange on June 25, 2004.
The trial court provided the following instruction to the jury regarding count fifteen:
For you to find the defendant guilty of this charge contained in count [fifteen], the State must prove beyond a reasonable doubt the following three elements:
1. That there was a firearm, S-37 in evidence, a Ruger semi-automatic pistol, . . . [that was] seized at 12 Hawthorne Place in East Orange;
2. That the defendant possessed the firearm; and,
3. That at the time alleged in the [i]ndictment, that is, June 25th, 2004, the defendant was in the course of committing, attempting to commit, or conspiring to commit distribution of heroin or possession of heroin with the intent to distribute.
In discussing the third of the three aforementioned elements, the court stated that the drug offense involved was "distribution or possession of heroin with the intent to distribute." The court provided essentially the same charge with regard to counts sixteen and seventeen.
Defendant contends that the charges on the three counts were erroneous because the court instructed the jury that, in order to find defendant guilty on these three counts, it had to find that he possessed the weapons while in the course of either the unlawful possession of heroin with intent to distribute or distribution of heroin. Defendant did not object to the instructions. We therefore consider this argument under the plain error standard. R. 2:10-2.
We are convinced that the instructions were erroneous but the errors were not "clearly capable of producing an unjust result." R. 2:10-2. The charges in counts fifteen, sixteen and seventeen pertained to weapons seized at 12 Hawthorne Place in East Orange on June 25, 2004. Defendant was charged with possessing those weapons while in the course of committing the offense charged in count fourteen.
Count fourteen involved the possession of heroin with intent to distribute, not the distribution of heroin. Although the trial court erred by stating defendant could be found guilty on counts fifteen, sixteen and seventeen if he possessed the weapons while engaged in the commission of either the possession of heroin with intent to distribute or the distribution of heroin, there was no evidential basis for the jury to find defendant guilty based on distribution.
Indeed, the State did not present any evidence to establish that defendant was engaged in the distribution of heroin at 12 Hawthorne Place on June 25, 2004, when the weapons were found there. Furthermore, the court's instruction on count fourteen made clear that the charge pertained to the possession of CDS with intent to distribute, not the distribution of CDS.
We are therefore satisfied that the erroneous instructions on counts fifteen, sixteen and seventeen were not clearly capable of producing an unjust result. R. 2:10-2. The errors in the instructions do not rise to the level of plain error.
Defendant additionally argues that the verdict on count four was against the weight of the evidence and the court should have granted his motion for a new trial on that basis.
A trial judge may not set aside a jury's verdict in a criminal case on the ground that the verdict was against the weight of the evidence "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. Furthermore, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.
In count four, the State charged that, on or about June 25, 2004, in Trenton, defendant, Robert Cashwell (Cashwell) and Shameekah Melvin (Melvin) knowingly or purposely distributed heroin, in a quantity of five ounces or more, contrary to N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and N.J.S.A. 2C:2-6. The court instructed the jury that defendant could be found guilty on this count if Cashwell and/or Melvin committed the offense and defendant "acted as an accomplice with the purpose that the [offense] be committed."
Defendant argues that the State failed to present sufficient evidence to establish that Cashwell or Melvin were involved in the distribution of heroin in Trenton on or about June 25, 2004. We disagree.
At the trial, the State presented evidence that it learned from a confidential informant that Larry Willis (Willis) was distributing heroin in Trenton. The State obtained authorization to place a wiretap on Willis' phone. The intercepted calls indicated that Cashwell was supplying Willis with heroin. The State then obtained authorization to place a wiretap on Cashwell's phone. The intercepted phone calls revealed that defendant supplied Cashwell with heroin.
Furthermore, the State presented evidence that it intercepted telephone calls on the evening of June 24, 2004, which indicated that Cashwell was arranging the purchase of heroin from defendant, and Cashwell and Melvin planned to deliver heroin to the Trenton area for distribution there.
Cashwell called defendant at 10:21 p.m. and they agreed to meet at defendant's apartment building at 413 Dodd Street in East Orange. Cashwell met Melvin and they proceeded to 413 Dodd Street. A green Hummer, which defendant was known to drive, was seen at that location. Cashwell was observed entering the building.
At around 11:22 p.m., Cashwell left the building carrying a black bag, which he did not have when he entered the building. Thereafter, Cashwell and Melvin drove to Trenton. They sold heroin to Willis. Cashwell and Melvin then met Akeem Blue (Blue) in the parking lot of a convenience store in Hamilton, New Jersey, for the purpose of selling heroin to him. Cashwell, Melvin and Blue were arrested. The police found 179 bricks*fn1 of heroin and $4670 in cash in Cashwell's car. The police also found a shoe box containing $46,718 in Blue's car.
Defendant contends that the evidence failed to establish that Cashwell distributed heroin to Blue because Cashwell and Blue were arrested before the transaction was completed. We are satisfied, however, that the State presented sufficient evidence from which the jury could reasonably find that Cashwell had distributed heroin to Blue.
Defendant additionally argues that there was no evidence that he was involved in the distribution of heroin to Willis or Blue on June 25, 2004. He asserts that he was "no where near Trenton" when the drug transactions occurred. However, based on the evidence presented at trial, a reasonable jury could find defendant guilty of distributing heroin as Cashwell's accomplice.
Defendant further argues that the trial court erred in its charge to the jury on count four. Defendant contends that instead of charging him as an accomplice, he should have been charged with conspiracy because there was no evidence that he was directly or indirectly involved in the distribution of the drugs on June 25, 2004. We find no merit in this argument. We are satisfied that there was sufficient evidence of defendant's involvement with Cashwell and Melvin in the distribution of heroin on June 25, 2004, to warrant his conviction as an accomplice.
Defendant raises the following additional arguments regarding his convictions: the verdicts on counts one and two were against the weight of the evidence; the court erred when it responded to the jury's questions during its deliberations because it only provided the jury with read-backs of the testimony of certain witnesses and should have provided the jury with the cross examination of these witnesses; the court erred by providing the jury with a copy of its written charge, after the jury asked the court to repeat its definition of the word "constructive;" and the court erred by failing to read into the record one of the questions raised by the jury during its deliberations. We are convinced that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant additionally argues that his sentences are manifestly excessive and should be reduced.
Here, the trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). The court found the following aggravating factors: N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court sentenced defendant to an extended term of life imprisonment, with a twenty-five year period of parole ineligibility on count four, and a consecutive extended term of fifteen years on count two, with a five-year period of parole ineligibility.
Defendant argues that the court erred by failing to find mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment of defendant would entail excessive hardship to himself or his dependents). Defendant has five children with different mothers. He asserts that his imprisonment would be an "obvious" hardship to them. However, defendant did not present any evidence showing that he was supporting the children or had a nurturing relationship with them. Defendant therefore failed to establish that his incarceration would result in "excessive hardship" to his children. N.J.S.A. 2C:44-1(b)(11).
Defendant also argues that there is an impermissible disparity between his sentence and the sentence imposed upon co-defendant Cashwell. The trial court found that defendant and Cashwell were not similarly situated in terms of the offenses of which they were convicted. The record supports the court's finding. Cashwell pled guilty to one offense, specifically first degree possession of heroin with intent to distribute within 1000 feet of school property, and he was sentenced to ten years of incarceration with a forty-two month parole disqualifier.
Moreover, the trial court noted on the judgment of conviction that, in sentencing defendant, it had considered the sentences imposed on Cashwell and the other co-defendants but found that defendant had a superior role in the distribution of heroin and his conduct was distinguishable from that of the co-defendant's "in terms of volume, profit, supervisory role, as well as on the basis of his prior criminal history." Again, the record supports the court's finding.
We are therefore satisfied that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).