July 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIL JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2010
Before Judges Lisa, R. B. Coleman and Alvarez.
Defendant Jamil Johnson was convicted in absentia on July 26, 2004, and sentenced on February 9, 2007, after the denial of his motion for a new trial. He now appeals. We affirm.
Defendant's points are as follows:
POINT I: THE TESTIMONY PERTAINING TO THE LEXUS VEHICLES VIS-À-VIS DEFENDANT WAS IRRELEVANT TO THE CASE AND ITS INHERENTLY UNDULY PREJUDICIAL NATURE AND EVIDENCE OF PRIOR BAD ACTS WAS SUCH THAT ITS ADMISSION AT TRIAL WAS REVERSIBLE ERROR.
POINT II: THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE TRIAL TO COMMENCE IN DEFENDANT'S ABSENCE AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL.
POINT III: THE RECORD BELOW DEMONSTRATES THAT DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, WHICH SERVED TO DENY HIM OF HIS CONSTITUTIONALLY PROTECTED RIGHT TO A FAIR TRIAL.
POINT IV: THE MOTION COURT COMMITTED REVERSIBLE ERROR IN ITS REFUSAL TO GRANT DEFENDANT-APPELLANT'S MOTION FOR A NEW TRIAL.
POINT V: THE SENTENCE IMPOSED BY THE COURT WAS GROSSLY EXCESSIVE AS A MATTER OF LAW.
Officers from the Elizabeth Police Department executed a no-knock search warrant on defendant's apartment on April 18, 2003. When Detective Kevin McDonough entered the premises, he first saw Marcus Johnson, defendant's brother, in the living room. He followed as defendant's brother attempted to flush 108 vials of cocaine down the toilet. As McDonough ran out of the living room, he saw defendant enter "from the kitchen area."
Additional items found in defendant's apartment included a piece of clear plastic containing cocaine residue, plastic bags with clear plastic vials in them, paper dust masks or face masks used by drug dealers to avoid the ingestion of cocaine powder, a dinner plate with a razor blade on top that had cocaine residue, empty magazine wrappers, forty-seven envelopes of heroin in a child's bedroom, and $2511 in cash in a front bedroom. When defendant was searched, $441 and keys for two Lexus vehicles were also seized. Defendant had been observed using both, although the vehicles were not registered in his name, during the surveillance that preceded the issuance and execution of the warrant.
Officer David Conrad, who inventoried the Lexus cars, discovered hidden compartments in the trunk of the white Lexus.*fn1
Officer Michael Murphy searched the vehicles with the use of a narcotics canine; based on the dog's reaction, both cars were seized as evidence.
Defendant was advised of his trial date and was notified that the trial would be conducted even if he failed to appear, on July 12, 2004, pursuant to State v. Hudson, 119 N.J. 165, 182 (1990). Pretrial, defendant's application to suppress the information related to the secret compartments in the Lexus vehicles was denied. During the trial, Detective Martin Lynch testified as an expert. He stated that the traps contained in the vehicle were known to be used by drug dealers to hide contraband from the authorities as well as "to avoid being robbed of [their] drugs and money."
Defendant was convicted of third-degree possession of a controlled substance, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree possession with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four). Defendant was sentenced on February 9, 2007, after being arrested in Virginia on a warrant, to seven years on count three and a concurrent seven-year term on count four. The sentence was made subject to three and one-half years of parole ineligibility. Appropriate fines and penalties were imposed.
In support of his motion for a new trial, on February 9, 2007, defendant and his girlfriend, Cindy Brown, testified that his trial attorney assured him that because others had entered guilty pleas to possession of the drugs, no trial would actually occur, and that the judge and prosecutor were merely trying to frighten him.
During that hearing, defendant's trial attorney denied any such conversation and said that in his opinion it was "clear that [defendant] was aware the case was going to go forward." Additionally, an attorney familiar with defendant's family, Muhammad Bashir, testified that on July 12, 2004, he was contacted by defendant and defendant's girlfriend about stepping in to represent defendant at trial. He also stated that he was somewhat familiar with the case because Brown, initially a co-defendant, had brought him discovery at the start of the proceedings intending to retain him. Ultimately, Bashir urged Brown to continue with the public defender assigned to her case. Bashir recalled that the conversation with defendant about representing him occurred on the very day defendant's Hudson warnings were administered. Bashir's testimony and trial counsel's testimony stand in stark contrast to defendant's claim that he had been assured no trial would occur.
On appeal, defendant claims that his attorney was ineffective by virtue of several missteps, including: trial counsel's absence when the Hudson warnings were given (denied by trial counsel); trial counsel's failure to "create a record as to" defendant's absence so a postponement could have been obtained; the brevity and content of defense counsel's opening statement; defense counsel's lack of preparation as purportedly evidenced by his failure to obtain the expert report upon which the State intended to rely; his cross-examination of witnesses; his inability to "produce testimony corroborating the defense theory of the case"; and his lack of trial preparation.
The court admitted the testimony about the hidden compartment in the vehicle on the grounds that it was circumstantial evidence of intent to distribute. The trial judge summarized the following relevant facts: defendant had been seen operating the vehicle on several occasions; he had the key to the car in his pocket when arrested; he was seen engaging in hand-to-hand transactions; there was a concealed compartment in the car; and the positive reactions by the drug-detecting canine. She concluded that the evidence had "a tendency . . . to prove or disprove [a] fact of consequence to the determination of the action" and therefore was admissible because it was relevant. See N.J.R.E. 401. The State was required to prove possession with intent, and the evidence pertaining to the hidden compartment was highly probative on that issue. Defendant contends that the admission of the testimony was more prejudicial than probative and that therefore, his application for a new trial should have been granted and his conviction vacated.
We overturn evidentiary rulings made by the trial court only where an abuse of discretion has occurred. State v. Scherzer, 301 N.J. Super. 363, 468 (App. Div. 1997) (citing State v. Carter, 91 N.J. 86, 106 (1982)). Thus, an error will only be reversed if a "'manifest error or injustice'" has occurred. State v. Torres, 183 N.J. 554, 572 (2005) (citing State v. Ravenell, 43 N.J. 171, 182 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed. 2d 572 (1965)). Judges are permitted to exclude evidence when "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."
The trial court did not abuse its discretion by admitting proofs regarding the secret compartment in the vehicle. Defendant had been seen driving both Lexus cars on prior occasions and when arrested, was carrying the keys for both. The expert testimony established that drug dealers frequently use these hidden compartments to prevent detection by law enforcement and to prevent theft of their drugs.
The testimony was admitted in furtherance of the elements the State was required to prove, namely, that defendant's possession of the contraband was for the purposes of sale. No manifest error or injustice therefore occurred.
Defendant contends the trial court committed plain error by proceeding to trial in his absence. This despite the following notification that was given by the court to defendant regarding his trial date:
Mr. Johnson, we're going to do your trial tomorrow morning at nine o'clock. You have to be back here at nine o'clock. If you fail to appear, we'll issue a warrant for your arrest. If you're not here tomorrow, . . . we'll do the trial without you, or if for any reason I should change the date, you'd be responsible for the date even if you weren't here. All right. Thank you. See you at nine o'clock tomorrow.
Defendant even argues that the record does not indicate whether trial counsel was present at this proceeding, a claim counsel flatly denies.
Defendant's assertion that, despite the trial court's clear explanation of his obligation to appear at trial, his attorney advised him that it was unnecessary to return to court, is simply not credible. As the prosecutor pointed out, "this all boils down to credibility," and the motion judge explicitly found trial counsel's testimony more credible than defendant's statements. It bears noting that we review trial court rulings as to credibility with great deference. State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted). In this case the court was presented with the trial attorney's testimony that he would never have told defendant not to appear for trial. In fact, defense counsel stated that he recalled attempting unsuccessfully to reach defendant on his cell phone and leaving messages for him after he failed to appear.
Most damning was Bashir's testimony. He stated that defendant contacted him on either July 12, 2004, or July 13, 2004, right after defendant had received his Hudson warnings. Defendant approached Bashir because he was not happy with the services he was receiving from his defense attorney and was considering retaining new counsel. The motion court's conclusion that the Hudson warnings were clearly understood by defendant, who simply elected not to appear at trial, is borne out by the record.
Defendant's failure to appear was "knowing, voluntary, and unjustified." See R. 3:16(b). The court neither erred in proceeding to try the matter despite defendant's absence nor erred in denying the motion for a new trial made on that basis.
Defendant now asserts as a basis for the grant of a new trial, several instances of claimed ineffective assistance of counsel. First, that his attorney should have asked the trial court for "a reasonable period of adjournment" to allow his client to appear at trial. Second, that defense counsel's opening statement was fatally short and that he did not adequately advocate defendant's interests. Third, that defense counsel's failure to obtain the State's expert report demonstrates his overall lack of preparedness. Fourth, that his attorney did not make a sufficient effort "to produce testimony corroborating the defense theory of the case." Fifth, he maintains that defense counsel's cross-examination of various witnesses was injurious to his interest.
Generally, we defer ineffective assistance of counsel claims to post-conviction relief applications "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992) (citations omitted). We will defer defendant's allegations with reference to counsel's opening statement, failure to demand the State's expert report, insufficient effort to obtain favorable testimony, failure to produce witnesses, and to conduct additional cross-examination to a subsequent application without comment. We will address, however, the contention that defense counsel should have created a record as to defendant's nonappearance and should have demanded an adjournment.*fn2
We employ a two-part test when evaluating claims of ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, "defendant must show that counsel's performance was [truly] deficient." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must establish "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. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The "benchmark" for assessing ineffective assistance of counsel is whether counsel's professional errors "'materially contributed'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).
The claim that counsel should have created a record makes no sense. Trial counsel did not know the reason his client failed to appear. He received no answer to his phone messages. Counsel could not have created a record as to his client's absence without information.
The motion court's credibility findings are virtually unassailable. State v. Elders, 192 N.J. 224, 244-45 (2007). The assertions of defendant and his witness that his attorney told him he need not appear for trial are not believable and were not accepted by the motion court. Those credibility findings are entitled to deferential review and are deserving of such deference. Additionally, Bashir's testimony corroborates that defendant absolutely understood his responsibilities with respect to the court calendar and understood the consequences of the choice not to appear.
When a defendant is advised about his obligation to appear in court and without explanation fails to appear, an attorney has no basis for requesting an adjournment. Had it been requested, the request would have been summarily denied. Thus, counsel's silence was unexceptional. The failure to request an adjournment did not prejudice the outcome. Even if the trial had been adjourned, defendant does not suggest how his attorney could have compelled him to appear.
Defendant also contends that he should have been entitled to a new trial because defense counsel misled him about the prosecution. We affirm a trial court's denial of a new trial "unless there is a clear showing of a miscarriage of justice." Okulicz v. DeGraaff, 361 N.J. Super. 320, 329 (App. Div. 2003) (citing R. 2:10-1). The trial court's findings are entitled to due deference because of "the intangible aspects of the case including witness credibility and 'the feel of the case.'" Ibid. (quoting Shaefer v. Cedar Fair, L.P., 348 N.J. Super. 223, 240 (App. Div. 2002)). As discussed earlier, the motion court found the claim incredible, and we agree. The issue does not warrant additional discussion. R. 2:11-3(e)(2). There was no "miscarriage of justice" in the court's refusal to grant a new trial based on defendant's claim.
Lastly, defendant claims his aggregate sentence to seven years imprisonment, subject to three and one-half years of parole ineligibility, was grossly excessive as a matter of law. In reviewing a sentence, a trial court's finding of mitigating and aggravating factors will not be disturbed so long as they are based on "'substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (citation omitted); State v. O'Donnell, 117 N.J. 210, 215-16 (1989). A sentence will be affirmed "'as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Cassady, supra, 198 N.J. at 180 (quoting O'Donnell, supra, 117 N.J. at 215-16). So long as the trial court "properly weighed and considered the relevant aggravating and mitigating factors" based on "'substantial evidence in the record,'" a sentence will only be overturned if it "'shocks the judicial conscience.'" Id. at 180-81 (citations omitted).
The trial court found aggravating factors three, six, and nine and found no mitigating factors. The court merged counts one and two into count four for sentencing purposes. The court sentenced defendant to a mandatory extended term on count four. The court sentenced defendant in the second-degree range as to both counts - as to one because he was eligible for a mandatory extended term, and the other because it was a second-degree offense. Defendant had been convicted both as a juvenile and an adult of drug distribution. As an adult, he had been previously sentenced to at least two terms of state prison, both for drug distribution offenses. The court was informed that defendant had children and was working when he was taken into custody on the outstanding warrant for these charges, but that circumstance alone does not warrant the award of mitigating factor eleven. See N.J.S.A. 2C:44-1b(11). The trial court articulated its reasons for finding aggravating factors and no mitigating factors. The trial court sentenced well within its discretion to substantially less time than defendant could have received. We are satisfied that the trial court properly followed the sentencing scheme. Neither does the sentence shock our conscience. See Cassady, supra, 198 N.J. Super. at 180.