June 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY M. HARRIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-02-0124.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 10, 2011
Before Judges Parrillo and Skillman.
Tried in absentia by a jury, defendant Anthony Harris was convicted of third-degree distribution of a controlled dangerous substance within 1000 feet of a school, N.J.S.A. 2C:35-7 (count two); third-degree distribution of crack cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count three); third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count eight); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count nine); third-degree conspiracy to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5a(1), -5b(3) (count ten); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count eleven). After appropriate mergers, defendant was sentenced to an aggregate eight-year term with three years of parole ineligibility.*fn1 Defendant appeals, and we affirm.
According to the State's proofs, in late April 2007, Beverly Police received several tips that drug transactions were occurring on Third Street, between Broad and Laurel Streets, in the township. As a result, officers from the department teamed up with members of the State Police Street Gang Unit to conduct a "sneak and peek" street operation. A "sneak and peek" operation involves undercover officers surreptitiously surrounding a drug trafficking area in an attempt to observe drug exchanges. Once targets are identified, a "sneak and peek" team typically remains to observe several more transactions in an attempt to identify as many of the accused dealers as possible.
At approximately 3:00 p.m. on May 2, 2007, the investigation team assembled in Beverly, led by State Police Detectives Keith Lawyer and Edward Kits, and Beverly Police Officer Steven Meyers. Detective Lawyer and Officer Meyers were assigned one location and Detective Kitts, another. Other officers maintained a perimeter around the area. At around 3:35 p.m., the team observed two black males, later identified as Steven Fisher and Aaron Johnson, standing at the corner of Third and Broad Streets. Five to ten minutes later, a white female approached Fisher with cash in hand. The two had a quick conversation and Fisher turned around, facing away from the female but towards the undercover officers, and pulled a small plastic bag with green items from his waistband. Thereafter, the female exchanged money for the bag and Fisher walked back to his original location. Detective Lawyer had a clear view of this transaction and believed, based on his experience, that he witnessed a narcotics transaction.
Approximately ten minutes later, Detective Kitts radioed that he saw Johnson flag down a grey minivan that was traveling slowly north on Broad Street. Johnson approached the vehicle's driver, a black female, and, after a short conversation, pointed toward Fisher's location at the corner of Third and Laurel Streets. The team observed Fisher enter the passenger side of the minivan, after which the vehicle drove off and looped around the block. At the end of their loop, Fisher exited the vehicle with cash in hand and returned to the corner of Third and Laurel.
Ten minutes later, Johnson, who was standing at the corner of Broadway and Third, walked over to the corner of Third and Laurel to meet up with Fisher. Thereafter, defendant arrived and was standing at the corner of Third and Broad, which was a block away from where Johnson and Fisher were standing. Shortly thereafter, a silver Hyundai, driven by a black female later identified as Karolyn Goodman, was driving very slowly southbound on Broad Street. Defendant walked down Third Street, passing Detective Lawyer's and Officer Meyers's surveillance point, toward the vehicle, motioned the vehicle over and had a conversation with Goodman. Defendant then walked toward the corner of Third and Laurel and met up with Fisher and Johnson. Goodman turned her vehicle around and headed toward Fisher, Johnson, and defendant. Thereafter, Fisher approached the vehicle and, after a brief conversation with Goodman, opened the passenger door and lifted the seat up, as if reaching for something in the back. Fisher then reached into his waistband and exchanged with the driver an object, later identified as crack cocaine, for cash, which he held in his hand as he exited the vehicle. Fisher returned to the corner, and Goodman drove away.
The investigation team ordered Goodman's arrest shortly after she left the scene and was away from where defendant and the others could view her. Goodman was eventually arrested a few minutes later as she was pulling up to her house. The arresting officer, Detective Brian Smith of the New Jersey State Police, observed a green bag in Goodman's mouth and ordered her to spit it out. A lab analysis revealed that the bag contained crack cocaine.
About eight minutes after Goodman's departure and some forty minutes
since the team first arrived at the scene, Fisher, Johnson, and
defendant walked down Third Street, past the location of Detective
Lawyer and Officer Kitts, toward the corner of Third and Broad.
Thereafter, another individual, later identified as John Myers,
approached the group and flashed a peace sign. Myers passed the group
and crossed Broad Street
to wait at the northwest corner of Broad and Third. While Myers was
walking away, Fisher reached into his waist band and removed another
bag of crack cocaine, while defendant and Johnson looked around for
police. Thereafter, Fisher, Johnson, and defendant walked toward
Myers, where Fisher and Myers engaged in a hand-to-hand transaction,
while defendant and Johnson remained on either side of them. After the
exchange was completed, Fisher, Johnson, and defendant returned to the
corner of Broad and
Third, while Myers walked toward a building on
310 Broad Street, picked up a green cigarette box from the ground, and
put a bag into the cigarette box, which he then placed under the steps
of 310 Broad. A later search of the cigarette box uncovered thirteen
bags of crack cocaine. Fisher, Johnson, defendant and Myers were
arrested. No drugs or cash were recovered from defendant.
On appeal, defendant raises the following issues for our consideration:
I. THE TRIAL JUDGE MISAPPLIED THE LAW IN FAILING TO HOLD A HEARING REGARDING THE ADMISSIBILITY OF SURVEILLANCE LOCATION EVIDENCE AS THE LACK OF OBSERVATIONS WARRANTED THE ADMISSIBILITY OF SURVEILLANCE LOCATIONS EVIDENCE.
II. THE TRIAL JUDGE MISAPPLIED THE LAW BY DENYING DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT, NOT PERMITTING DEFENDANT TO RETAIN NEW COUNSEL AND HOLDING THE TRIAL WITH THE DEFENDANT IN ABSENTIA.
III. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO FILE A MOTION FOR A NEW TRIAL PRIOR TO SENTENCING, AS REQUIRED IN RULE 3:20-2.
IV. THE TRIAL JUDGE MISAPPLIED THE LAW BY IMPOSING AN EXCESSIVE SENTENCE.
We address these issues in the order raised.
Defendant first argues that the trial court erred in not allowing cross-examination of police witnesses on their precise surveillance locations and should have held a preliminary N.J.R.E. 104(a) hearing on the admissibility of the location information. We reject this argument because there is no obligation sua sponte to hold such a hearing without a request and, in any event, defense counsel was given adequate opportunity to otherwise cross-examine on this issue and defendant has not shown any prejudice from non-disclosure of the privileged information.
N.J.R.E. 515 provides that "[n]o person shall disclose official information of this State or of the United States . . . if the judge finds that disclosure of the information in the action will be harmful to the interests of the public." See also N.J.S.A. 2A:84A-27. This language, taken verbatim from the rule's predecessor, Evid. R. 34, "provides a 'surveillance location privilege' that permits the State, in appropriate circumstances, to conceal information about the location from which law-enforcement personnel have observed alleged criminal activities." State v. Zenquis, 131 N.J. 84, 86 (1993); see also State v. Garcia, 131 N.J. 67, 73 (1993).
Under this rule, "the State must [first] demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 78. "In deciding whether to require disclosure, a court must focus on the negative effect that such disclosure may have on the public good." Id. at 80. Thereafter, the defendant may request an evidentiary hearing, but must show a "substantial need" for the location information to bar suppression. Id. at 81. Ultimately, an appellate "court will not overturn a lower court's ruling unless after weighing the competing factors, [the] court determines that the trial court abused its discretion." State v. Ribalta, 277 N.J. Super. 277, 288 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995).
"In most cases, a defendant can conduct effective cross-examination at trial without learning the exact surveillance location." Garcia, supra, 131 N.J. at 81; see also State v. Laws, 262 N.J. Super. 551, 559 (App. Div.), certif. denied, 134 N.J. 475 (1993). Available bases of cross examination typically involve questions related to a witness's ability to view the alleged transaction:
 a defendant may always inquire about the distance from which the observation was made . . .  a defendant may always ask if the witness used some vision[ ]enhancing article, e.g., binoculars or a telescope, . . .  a defendant should be permitted to explore whether the officer observed the alleged crime from an elevated position[, and] . . .  a defendant may inquire into the officer's angle of sight. [Garcia, supra, 131 N.J. at 81--82.]
In Zenquis, supra, which was decided the same day as Garcia, the Court found error in suppressing testimony about the officer's specific surveillance location because the judge restricted cross-examination to questions about the police officers' distance, which precluded inquiry about their line of sight, elevation, and capacity to view the alleged drug transaction. 131 N.J. at 89. Moreover, in a matter where visual identification by the police officer is the State's sole evidentiary basis, a trial court's suppression will be heavily scrutinized on appeal. Ibid.
Once the State meets its initial burden of showing that the location information should be protected, it is incumbent on the defendant to request an evidentiary hearing and show substantial need for the information. Garcia, supra, 131 N.J. at 81.
Indeed, "[a] trial court generally is not obligated to conduct a N.J.R.E. 104(a) hearing on its own motion if there is no challenge by any of the parties to the proffered evidence." Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 104 (2010).
Here, Detective Lawyer specifically explained that no videos or photos are taken during "sneak and peek" operations so as not to identify specific locations for fear of losing the cooperation of private citizens and compromising their safety. As such, the trial court sustained the State's objection to defense counsel's attempt to question Detective Lawyer about whether he was inside a vehicle or building during the surveillance and his exact distance from the curb. Despite the opportunity to do so, defendant never requested an evidentiary hearing or an in-camera review of the privileged information. Nor did defendant ever attempt to demonstrate a substantial need for such disclosure, or that the specific surveillance location was necessary for his defense.
In any event, the record reveals that defendant had sufficient opportunity to otherwise cross-examine the police witnesses as to their ability to observe the drug transaction. For instance, on direct examination, Detective Lawyer created a diagram that was entered into evidence, indicating the approximate position of each member of the investigation team relative to the location of defendant, Fisher, and Johnson.*fn2
Lawyer also testified that he viewed the entire scene through a window, and that he had a clear, unobstructed view from his vantage point. He further stated that he was approximately fifty yards from the first transaction, and thirty feet from where defendant motioned for Goodman's car. Moreover, Lawyer admitted on cross-examination that he could not view the transaction between Fisher and the black female in the gray minivan, the second transaction before defendant arrived, because the vehicle drove off. He also admitted that defendant did not engage in any transaction after his arrival, but merely flagged down Goodman's car and was present as a lookout for Myers's drug purchase. Having asked Detective Lawyer about whether his view was obstructed, his distance from each transaction, whether he was behind a window, as well as whether he personally witnessed defendant make a transaction, defendant simply has not shown how any more detail about Lawyer's exact location would have aided his defense.
The same may be said about Officer Meyers, who testified that he was in the same surveillance position as Lawyer, which was marked for the jury on a map. Officer Meyers's testimony essentially corroborated Lawyer's account of the four drug transactions. Meyers also had an unobstructed view of the entire intersection and likewise admitted that he did not see an actual transaction between Fisher and the unidentified female in the minivan. As with Lawyer, defendant has not shown how Meyers's specific location would aid his defense given that Meyers did not even observe the transaction between Fisher and the female, and therefore his exact location was not material, much less necessary.
Lastly, as with Lawyer, Detective Kitts drew his general location, which was separate from that of Detective Lawyer and Officer Meyers, on the map exhibited to the jury. He testified being 500 feet from the corner of Broad and Third Streets where Fisher and Johnson often stood, using binoculars to aid his sight, and only observing defendant motion toward Goodman's car for a second or too. Moreover, defendant's gesturing was corroborated by both Lawyer and Meyers. Here again, defendant was afforded adequate opportunity to test Kitts's observations and has not shown the necessity for disclosure of the exact surveillance site.
Defendant next contends that the trial court erred in denying his
eve-of-trial request for an adjournment and
substitution of counsel, and in conducting the trial with defendant in
absentia. We disagree.
On February 10, 2009, the day of jury selection, defendant appeared and requested a continuance for the purpose of hiring substitute counsel. Defendant stated that he informed the previous judge assigned to this matter in December 2008, two months before trial, of his intention to change counsel, and was told by the judge to proceed quickly to avoid delay. However, defendant admitted that he had not obtained new counsel, having paid only a partial retainer by the scheduled trial date. When pressed by the judge for the reasons behind his motion, defendant simply stated that he wanted a "personal relationship" with his counsel. The court denied defendant's motion, finding that defendant's last-minute request was unsupported and, further, that defendant could have, but did not, bring new counsel to the hearing despite the opportunity to do so.
After denial of his motion, defendant was given permission to use the bathroom prior to jury selection. Instead, defendant left the courthouse and did not return. After several attempts to locate defendant proved unsuccessful, the trial court decided to proceed with jury selection since the jury pool had already been summoned. Defendant also failed to appear at trial, which proceeded the day after jury selection, February 11, 2009.
Defendant was present the day before and obviously had prior notice of the trial date. Moreover, his attorney made several attempts to reach him, all to no avail.
Several legal principles guide our determination of this issue. First, a defendant does not enjoy an unencumbered right to counsel of his or her choice. See Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 1616-17, 75 L. Ed. 2d 610, 619-20 (1983). A defendant also does not have a right to counsel who will blindly follow his instructions. Ibid. A defendant may substitute counsel for good cause, but a disagreement over trial strategy does not rise to the level of good cause. State v. Buhl, 269 N.J. Super. 344, 362 (App. Div.), certif. denied, 135 N.J. 468 (1994). "The determination of whether the motion for substitution of counsel should be granted is within the discretion of the trial judge and the judge is entitled to take into account the countervailing state interest in proceeding on schedule." State v. Ortisi, 308 N.J. Super. 573, 588 (App. Div.), certif. denied, 156 N.J. 383 (1998). Consequently, a trial court's decision to deny a request for an adjournment to permit a defendant to retain counsel of his choice will not be deemed reversible error absent a showing of an abuse of discretion causing defendant a "manifest wrong or injury."
State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1995).
Second, a trial court does not abuse its discretion in denying a defendant's eve-of-trial request for a continuance and substitution of counsel where the defendant and his new counsel had ample opportunity to inform the court of their intended substitution. Id. at 405--06. Indeed, a defendant's failure to do so should not prejudice the public who has an interest in "[t]he efficient administration of justice without unreasonable delay." Id. at 401. Accordingly, "[a] trial court therefore must have the power to tightly control its own calendar so that the assignment of cases cannot be manipulated by the defense counsel or the defendant." Ibid.
More pertinent here, a trial court may properly deny an eve-of-trial request for substitution of counsel where a defendant has not actually retained counsel or has provided no indication that he is in the process of doing so. See State v. McLaughlin, 310 N.J. Super. 242, 260 (App. Div.), certif. denied, 156 N.J. 381 (1998). Typically, courts will only hold that a trial court has abused its discretion in denying an eveof-trial continuance when it is clear that a defendant's current counsel is unable to represent his client for reasons of personal bias or professional misconduct. State v. Hayes, ___ N.J. ___, ___ (2011) (slip op. at 38--39).
Measured against these principles, we conclude the trial court did not abuse its discretion in denying defendant's request for an adjournment and substitution of counsel. Defendant had ample opportunity to retain new counsel and, after being previously informed of the necessity for acting expeditiously, still had not retained new counsel at the time of trial. See McLaughlin, supra, 310 N.J. Super. at 260 (denying a defendant's eve-of-trial request for a continuance to find substitute counsel because the defendant gave no indication that he actually had obtained or had the ability to obtain new counsel).
Nor was there any error in proceeding to trial in absentia. Rule 3:16(b) provides that a "defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule." However, the rule further allows a defendant to waive his right to be present either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.
Courts in this State have repeatedly held that "once a defendant has been given actual notice of a scheduled trial date, nonappearance on the scheduled or adjourned trial date is deemed a waiver of the right to be present during the trial absent a showing of justification by the defendant." State v. Finklea, 147 N.J. 211, 213 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997); see also State v. Ellis, 299 N.J. Super. 440, 449 (App. Div.), certif. denied, 151 N.J. 74 (1997); State v. Butler, 278 N.J. Super. 93, 101 (App. Div. 1994); State v. Lynch, 177 N.J. Super. 107, 113 (App. Div.), certif. denied, 87 N.J. 347 (1981). Justified circumstances typically require that the defendant have no control over his ability to appear. See, e.g., State v. Givens, 353 N.J. Super. 280, 287 (App. Div. 2002) (holding that a defendant who failed to appear at trial because she was incarcerated in a federal detention facility on unrelated charges did not knowingly waive her right to appear).
The defendant in Finklea, supra, appeared for a pre-trial conference one month prior to the date of trial, when he was informed of the trial date by the court. 147 N.J. at 213. The defendant failed to appear on the date of trial, and the trial court adjourned the matter for two weeks. Id. at 214. However, the defendant also failed to appear on the second trial date, and the trial court proceeded in absentia, despite defense counsel's request for a second continuance. Ibid. The Court found that the defendant voluntarily waived his right to appear at trial because he was aware of the trial date and failed to appear. Id. at 222. The Court further concluded that the burden was on defense counsel to request a hearing to determine whether defendant had adequate justification for failing to appear. Id. at 220-21.
Similarly, in Butler, supra, the defendant was informed of the trial date by the trial judge when he appeared at a pre-trial hearing that was scheduled four days prior to trial. 278 N.J. Super. at 101. However, the defendant failed to appear at trial, and the judge proceeded with defendant in absentia. Ibid. We held that the defendant knowingly waived his right to appear at trial because he was clearly aware of the trial date and did not present any justifiable excuse for his absence. Ibid.
Under the circumstances, we conclude that defendant knowingly waived his right to be present at trial. Having been clearly informed of the trial date and time, defendant freely chose to absent himself from the proceeding after the court denied his request for a continuance to secure new counsel.
Defendant next argues that trial counsel was ineffective for failing to move for a new trial under Rule 3:20-2 on the ground that defendant did not waive his right to appear at trial. In light of the previous discussion, we reject this argument as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Simply put, defendant cannot demonstrate how counsel's failure to so move actually prejudiced defendant or would have led to a different result. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987).
We also reject as utterly without merit defendant's final contention that his sentence was manifestly excessive because the court failed to consider the impact on defendant's daughter, N.J.S.A. 2C:44-1b(11). Suffice it to say, the record lacks proof of any such hardship. See State v. Dalziel, 182 N.J. 494, 505 (2005). Moreover, the sentence at issue runs concurrent to a lengthier one imposed on defendant's two resisting arrest convictions not here under review.