October 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOYLE RAINDROP, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-1963.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Rodríguez and Miniman.
Following a jury trial, defendant Doyle Raindrop was convicted of nine drug related offenses. Defendant was tried jointly with co-defendant Rasaan Furgess. After merger, defendant was sentenced for: second degree possession of CDS (cocaine) with intent to distribute while within 500 feet of a public housing facility; and second degree possession of CDS (heroin) with intent to distribute while within 500 feet of a public housing facility. Judge Michael R. Casale granted the State's motion for imposition of an extended term, and imposed concurrent terms aggregating eight years with a three-year parole disqualifier. We affirm.
These are the salient facts. Newark Police Detective Louis Weber testified that on January 18, 2007, he and other officers conducted surveillance of a courtyard at the Pennington Court Apartments project in Newark. Weber saw defendant and Furgess walk into the courtyard. A Caucasian woman approached defendant in the courtyard, spoke to Furgess, and then handed him some paper currency. Furgess gave the money to defendant, who then walked to the windowsill of an apartment on the first floor of Pennington Court. Defendant retrieved "unknown objects" from the windowsill and handed them to Furgess. Furgess, in turn, handed the objects to the woman.
Believing that they had witnessed a drug transaction, the officers proceeded into the courtyard to make arrests. While defendant was immediately apprehended, Furgess ran away. Weber testified that when another officer shouted that Furgess had climbed into the window of the first floor apartment, where defendant had obtained the unknown objects, Weber ran into the building and apprehended Furgess as he was exiting that apartment. Furgess was searched. He had glassine envelopes with heroin on his person. In the apartment, the police found glassine envelopes of heroin and forty-three vials of cocaine in the windowsill and two "rocks" of cocaine on the kitchen table. Defendant and Furgess were arrested. The police found $183 in cash on defendant's person, and $660 on Furgess.
At trial, defendant sought to impeach Weber with his Grand Jury testimony where he mistakenly stated it was defendant who went through the window, when it was Furgess who had done so. On cross-examination, Weber agreed that his police report also inaccurately stated that the individual who climbed through the windowsill in an attempt to escape, who was searched and found to have drugs on his person, was the same individual who reached into the windowsill for the unknown objects.
Essex County Sheriff's Officer, Reginald Leon Holloway, testified as an expert in street level narcotics sales. Specifically, he testified to: packaging of cocaine and heroin for street distribution; the purpose of a stash location; and the manner in which street sales of illicit narcotics are conducted.
Defendant presented two witnesses to refute the police officer's account. One witness was Madeline Ortiz, the tenant who lived in the apartment where Furgess was apprehended. She testified that on the day of the arrest, a police officer climbed through the window into her bedroom and then went to the front door and let the other officer inside. She denied that anyone else had climbed through the window, or knowing defendant or Furgess. Ortiz stated that she saw defendant and Furgess for the first time on the day of the arrest.
Thomas Caraway testified that on the day of the arrest, he spoke to defendant in the courtyard and then left. When he came back shortly thereafter, two police vehicles pulled into the courtyard and detained him, defendant and others. The officers went around the corner and brought back Furgess, who was then searched and handcuffed.
The week before trial, defendant moved to sever his trial from Furgess's trial. The basis for the argument was that at the arraignment hearing, both defendant and Furgess were represented by the same attorney from the Office of the Public Defender. At his arraignment, Furgess stated on the record that "[defendant] was not in the pinch. He was nowhere near there."
The judge indicated that this was not the time to discuss that issue and that it would be addressed at a later date.
At the hearing on the severance motion, Furgess's counsel indicated that Furgess would not testify "under any circumstances." On the day of trial, defendant renewed the severance motion. The judge denied the motion because there were no "clear concrete reasons under State v. Sanchez, 143 N.J. 273 (1996), that justified severing the trials"; and there was "no affidavit, no certification, no proffer other than something that was allegedly said at [the arraignment hearing]." Thus, defendant and Furgess were tried jointly.
After the verdict, defendant moved for a new trial, arguing that: the testimony of Weber was unreliable; there was a fatal flaw in the indictment; defense counsel should have used the arraignment transcripts of Furgess's statement that defendant was not involved in the drug transaction; and defendant should have testified. Defense counsel indicated on the record that: "it didn't occur to me to use [the transcript] in that way"; and "it wasn't a strategic thing that I did."
The judge denied defendant's motion, stating "I don't know if I would have let anything said at CJP in to hurt any defendant when there's only one lawyer there." The judge concluded that Furgess's testimony would have been cumulative because the testimony that defendant wanted from Furgess was already put before the jury through Caraway. The judge also questioned the reliability and probative value of Furgess's statement.
On appeal, defendant contends:
DEFENDANT AND [FURGESS] SHOULD HAVE BEEN TRIED SEPARATELY.
Specifically, defendant argues that because Furgess could have testified, and this testimony would have bolstered Caraway's testimony that defendant was not involved in the operation, severance should have been granted. Defendant argues that Furgess's testimony would have completely exonerated defendant. The existence of Bruton*fn1 issues strengthen the argument that severance was necessary.
A decision on a motion to sever a trial is within the discretion of the trial judge and the motion may be granted provided there is prejudice to either the State or defendant. Sanchez, supra, 143 N.J. at 283; R. 3:15-2(b). In the interest of judicial economy, a joint trial is preferred where "much of the same evidence is needed to prosecute each defendant." State v. DeRoxtro, 327 N.J. Super. 212, 218 (App. Div. 2000) (quoting Sanchez, supra, 143 N.J. at 281) (internal quotation marks omitted). This preference, however, cannot outweigh "defendant's right to a fair trial." Id. (quoting Sanchez, supra, 143 N.J. at 282) (internal quotation marks omitted).
Where the severance motion is based on potential testimony from a co-defendant, the court must balance "the State's interest in the economy of a joint trial and a criminal defendant's interest in presenting exculpatory evidence to the trier of fact." Sanchez, supra, 143 N.J. at 290. Thus:
[t]he trial court should sever a joint trial if the court is reasonably certain that (1) the defendant will call his co-defendant as a witness in a separate trial; (2) the co-defendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his own trial; and (3) the co-defendant's proffered testimony will be credible and substantially exculpatory. [Id. at 293.]
The "mere possibility" a co-defendant will testify in a separate trial is an insufficient basis to grant a severance motion. Id. at 294. A showing that the co-defendant's testimony will be forthcoming is necessary before the denial of a severance motion will constitute an abuse of discretion. State v. Morales, 138 N.J. Super. 225, 230 (App. Div. 1975).
Here, the record reveals that Furgess was unwilling to testify under any circumstances, even if the trials were severed. Further, Caraway's testimony was that defendant was not involved in a drug transaction. Therefore, admission of Furgess's statement could be excluded as cumulative. Id. at 291. Thus, we perceive no abuse of discretion, and conclude that defendant did not meet the factors laid out in State v. Sanchez.
Defendant also contends:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
THE TRIAL COURT ERRED IN FAILING TO DISMISS AN INDICTMENT BASED ON FALSE TESTIMONY.
Defendant argues that due to inconsistencies in Weber's testimony at trial and his Grand Jury testimony, the motion should have been granted. We disagree.
Rule 3:20-1 provides that a new trial may be granted if it is in the interest of justice, but [t]he trial judge shall not, however, set aside the verdict of the jury as 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. [Ibid.]
Our standard of review is that a trial court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."
R. 2:10-1. We "must make [our] own determination as to whether there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record." Pressler, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2011). We "must accept as true the evidence supporting the jury's verdict and all permissible inferences therefrom." Ibid. (citing Bell Atlantic Network Services, Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999); Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006)). However, there is no miscarriage of justice when a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (quoting State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993) (internal quotation marks omitted)); see State v. Brown, 80 N.J. 587, 591 (1979) (applying this standard when deciding a motion for a new trial as against the weight of the evidence) (citing State v. Reyes, 50 N.J. 454, 459 (1967)).
Here, the jury evaluates the witnesses' credibility and its weight. State v. Ingenito, 87 N.J. 204, 211 (1981). We must defer to the "jury's assessment of the witnesses' credibility and demeanor and the general 'feel of the case.'" State v. Davis, 229 N.J. Super. 66, 81 (App. Div. 1988) (quoting State v. Carter, 91 N.J. 86, 96 (1982)).
The judge found that, "[t]here were facts upon which the jury could base that verdict and [this] was purely an issue of credibility." We reach the same conclusion. Defendant was selling CDS while in a housing project. The trial proofs brought out Weber's inconsistent testimony before the Grand Jury and the petit. The petit jury had the opportunity to evaluate Weber's credibility. Applying the governing standard, and taking into account the favorable evidence and all reasonable inferences in favor of the State, we conclude that there was sufficient evidence to prove that defendant, acting in concert with Furgess, sold CDS while within a housing project.
Defendant also contends that,
THE SENTENCE SHOULD BE SET ASIDE AND THE MATTER REMANDED FOR A NEW TRIAL.
Defendant argues that the judge incorrectly weighed the aggravating and mitigating factors. Specifically, defendant argues that: because he did not commit the crime, the need for deterrence and the danger that defendant would commit the crime again are factors which do not apply in this case; it was inappropriate to consider defendant's criminal record; it increased the sentence for a crime which he did not commit; and the sentence is too severe because the trial and other proceedings were based on false testimony. We reject these contentions.
First, we note that defendant's conviction, unless set aside by the trial or appellate court, is binding on the sentencing court. The focus of the sentencing judge is to fashion a sentence for that conviction. Therefore, arguing that an aggravating factor does not apply because defendant did not commit the offense is a useless argument.
As for the consideration of the history of conviction, we note that statutory aggravating factor (6), N.J.S.A. 2C:44-1(a), specifically requires the court to consider such history. State v. Gallagher, 286 N.J. Super. 1, 21 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996); see also State v. Green, 62 N.J. 547, 571 (1973) (holding that a judge could consider prior arrest history in determining whether the defendant could be deterred). Therefore, this argument lacks merit.
As for the length of the sentence, we note that the judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1(a), i.e., (3) the risk that defendant would commit another offense; (6) the extent of defendant's prior criminal record; and (9) the need for general and specific deterrence. The judge also found one mitigating factor: N.J.S.A. 2C:44-1(b)(11), imprisonment would entail hardship on defendant's dependents. Defendant, age thirty-six at the time of the sentence, has been previously convicted of CDS possession and distribution, and one for aggravated assault.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. See State v. Johnson, 42 N.J. 146, 161 (1964). The sentences are in accord with the sentencing guidelines and based on a proper weighing of the factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).
Defendant also contends that:
DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL. Defendant argues that his counsel admitted at trial that: he should have introduced Furgess's statement that defendant "was not in the pinch"; and it was an oversight on trial counsel's part not to seek to use the transcript of Furgess's arraignment statement.
An ineffective assistance of counsel claim should generally be heard in post-conviction relief (PCR) proceedings. State v. Preciose, 129 N.J. 451, 460 (1992). This is particularly true when issues of defective performance of trial counsel are raised that involve disputed facts outside the record. The appropriate procedure for their resolution is not a direct appeal, but rather a petition for PCR attended by a hearing if a prima facie showing of remediable ineffectiveness is made. Id. at 460-61.
Here, defendant's assertion of ineffectiveness focuses on trial counsel's performance in preparation for the trial. These are disputed facts outside of the record. Therefore, these issues are not considered in this opinion. Rather, defendant would have to raise them in a PCR petition to the trial court.