November 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES PARHAM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-11-2616.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011 -
Before Judges Carchman and Baxter.
Defendant Charles Parham appeals from his October 17, 2008 conviction on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree distribution of CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). After merging count one with counts two and three, the judge imposed concurrent six-year terms of imprisonment, subject to a three-year term of parole ineligibility, on counts two and three.
On appeal, defendant raises the following claims:
I. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE BASED UPON THE UNLAWFUL PAT-DOWN OF SANTIAGO.
II. BECAUSE THE FACT THAT THE INCIDENT TOOK PLACE IN A "HIGH NARCOTICS AREA" WAS IRRELEVANT TO ANY ISSUES IN THE CASE, AS WELL AS HIGHLY PREJUDICIAL TO DEFENDANT, THE COURT'S RULING PERMITTING ITS REPEATED INTRODUCTION BY THE STATE REQUIRES REVERSAL.
On July 22, 2007, at approximately 11:00 p.m., two Freehold police officers, Christopher Colaner and Christopher Otlowski, were patrolling in an unmarked police vehicle in the area of Avenue A and Avenue C, an area known to both of them as a location where illegal narcotic sales were frequent. Both officers were highly-experienced in the detection of narcotics transactions, as Colaner had fifteen years of experience with the Freehold Police Department, and Otlowski had eleven.
Near the intersection of Avenue A and Avenue C, they observed two males, Helacio Tolentino and Fortino Santiago, approach defendant, who was standing on the sidewalk in front of a residence on Avenue A. From his surveillance position inside the unmarked vehicle, Officer Colaner observed Tolentino hand defendant what appeared to be paper currency and, in exchange, defendant dropped a small unknown item into Santiago's open hand. Based upon his training and experience, Officer Colaner believed he had witnessed a drug transaction.
While walking away from defendant, Tolentino and Santiago passed the officers' unmarked vehicle. Officer Colaner observed Santiago "open his hand and hold up a small clear plastic bag containing a white substance, . . . as if he was visually inspecting it." Seconds later, Officers Colaner and Otlowski exited their vehicle and approached the two men.
After identifying himself as a police officer, Colaner directed the two to stop and show their hands. Santiago remained in a defensive position with his arms crossed, shaking his head and stating that he did not understand English. Because of Santiago's failure to comply with Officer Colaner's order, Colaner approached Santiago and "pushed on [Santiago's] arms," at which time Santiago complied and dropped his hands to his side. While doing so, Santiago dropped a clear plastic bag to the ground. Otlowski immediately picked up the bag, saw that it contained cocaine, and placed Santiago and Tolentino under arrest.
Officers Colaner and Otlowski, as well as a marked patrol vehicle, immediately proceeded to the residence on Avenue A where Colaner and Otlowski had observed defendant make the exchange with Santiago and Tolentino. One of the uniformed officers, Sergeant DeMuth, parked his marked vehicle in front of the residence. Tolentino and Santiago were secured in the back of the vehicle and the interior light was on. When defendant exited the residence through the front door, Officer Otlowski placed him under arrest. When defendant asked the reason, Officer Otlowski pointed to the patrol vehicle and told defendant he was under arrest for selling cocaine to the two men seated in the rear. Defendant responded by blurting out, "I f_cked up. You got me." He added that he had only himself to blame and that no one else at the house had any involvement "with this." Searching defendant incident to the arrest, Colaner found in defendant's pants pocket a small clear plastic bag containing powder cocaine.
Defendant testified, admitting that he was in possession of cocaine at the time of his arrest. He also admitted to speaking with Tolentino and Santiago in front of his residence, but denied that he sold CDS to either of them. Instead, he claimed that Tolentino and Santiago merely approached him to inquire about the whereabouts of one of their friends who lived next door. According to defendant, he greeted each man with a handshake and informed them that their friend had left earlier that evening. Tolentino and Santiago then walked away.
After deliberating for several hours, the jury sent the judge a note advising him that although it had reached a verdict on count one, it was deadlocked and unable to reach a unanimous verdict on the remaining counts. After some further discussion with the jury in open court, the judge accepted the jury's verdict of guilty on count one, and declared a mistrial on the remaining counts.
The retrial began three months later, limited to counts two and three. With the exception of a portion of Officer Colaner's testimony at the first trial, which was not presented during the second trial,*fn1 the testimony offered at the two proceedings was virtually identical. As he had at the first trial, defendant testified in the second trial that Tolentino and Santiago approached him while he was standing in front of his home, that he shook hands with both of them and engaged in a brief discussion concerning the whereabouts of their friend who lived next door. He denied selling them cocaine. At the conclusion of deliberations, the jury returned a verdict finding defendant guilty on counts two and three.
In Point I, defendant argues that trial counsel rendered ineffective assistance by failing to move for the suppression of the cocaine found during the pat-down search of Santiago and during the search of defendant following defendant's arrest. He argues "[t]here was ample reason to question the legal justification for the 'pat-down' conducted of Santiago." Nonetheless, "trial . . . counsel failed to challenge that procedure by utilizing the elementary technique of filing a preliminary motion to suppress evidence. Because there could have been no conceivable strategic reason for that failure, and because the validity of the pat-down was dispositive of [the State's] ability . . . to prosecute the case," reversal of his conviction is required.
Defendant maintains that had trial counsel filed a suppression motion, it would have been granted. He bases that argument on the following contentions: 1) Colaner's testimony about Santiago standing on a public street and holding up a bag of cocaine for visual inspection, not when it was handed to him, but while he was walking away, was so "lacking in credibility" and so at odds with "logic" that the motion judge would have rejected such testimony had a suppression motion been filed; 2) "[i]f the highly suspect 'visual inspection' is removed from the equation, as it should be, then the only basis the police had for conducting the pat-down of Santiago was the suspected drug transaction Colaner claimed to have witnessed, added to the factor of the high-narcotics area," which even together, "was not an adequate justification"; and 3) the interaction between defendant, Tolentino and Santiago was as consistent with the innocent explanation offered by defendant as it was with the inculpatory inference proffered by the State.
To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
"Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal." Ibid. Here, we conclude defendant's ineffective assistance of counsel claim can be entertained on direct appeal because we need not consider matters that lie outside the trial record. In particular, we agree with defendant's contention that no evidentiary hearing was needed to determine whether trial counsel refrained from filing the motion due to strategic considerations, as there was no disadvantage to filing such a motion before proceeding to trial. Moreover, by evaluating the trial record, we are in a position to determine whether, as defendant claims, the motion would have been granted had trial counsel chosen to file it.
Although warrantless searches require probable cause, State v. Pineiro, 181 N.J. 13, 28-29 (2004), police are authorized to briefly detain an individual for questioning on less than probable cause, State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984). Such an investigatory stop is permissible when a police officer has a reasonable and articulable suspicion that the individual is involved in criminal activity. Ibid. In determining whether the police possessed the required reasonable and particularized suspicion, we must consider the totality of the circumstances. State v. Davis, 104 N.J. 490, 504 (1986).
As defendant acknowledges, the officers' encounter with Santiago and Tolentino began not as an arrest, but instead as an investigatory stop. When evaluating whether the police had the reasonable suspicion required by Alexander, we must consider the expertise and experience of the officers, because from the vantage point of an experienced police officer, conduct that may seem innocuous to the untrained observer may be recognized as criminal conduct. State v. Arthur, 149 N.J. 1, 10-12 (1997) (finding the investigatory stop to be justified in part by the officer's experience and expertise). On facts identical to those before us here, the Supreme Court concluded that police had probable cause to arrest the defendant because they observed an exchange of money for a small unidentified package after which the purchaser walked away. The Court held that probable cause existed to make an arrest. State v. Moore, 181 N.J. 40, 45-47 (2004); Accord, State v. O'Neal, 190 N.J. 601, 613 (2007).
Unquestionably, if such facts justify an arrest based upon probable cause, those same facts justify the less intrusive encounter presented here, namely an investigatory stop. The brief exchange of currency for a small object, in a high crime area, provides experienced police officers such and Colaner and Otlowski with an articulable and reasonable suspicion that a crime has been committed.
Viewing the officers' conduct here against the standards articulated in Arthur, Davis and Alexander, we are satisfied that the investigatory stop of Santiago and Tolentino was lawful even without the additional evidence of Santiago holding up the bag of cocaine in full view of the officers. For that reason, we need not consider defendant's arguments concerning the "lack of credibility" of Colaner's account of Santiago holding the bag of cocaine in mid-air on a public street, as we are satisfied that the police observation of the hand-to-hand transaction in a high crime area, was sufficient, standing alone, to provide reasonable suspicion to conduct an investigatory stop of Santiago and Tolentino.
As we have noted, Santiago dropped the bag to the ground, thereby relinquishing any privacy interest he may have retained in the bag or its contents. State v. Farinich, 179 N.J. Super. 1, 6-7 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). Officer Otlowski's seizure of the abandoned plastic bag, and his determination that it contained cocaine, provided probable cause to arrest defendant. Moore, supra, 181 N.J. at 45-47.
After lawfully arresting defendant on probable cause, Officers Colaner and Otlowski were entitled to search him. A search incident to a lawful arrest is a "traditional and universally recognized" exception to the warrant requirement. O'Neal, supra, 190 N.J. at 612-15; State v. Bradley, 291 N.J. Super. 501, 509 (App. Div. 1996). All that is required for a valid search incident to arrest is the existence of probable cause to conclude the individual committed a crime. State v. Oyenusi, 387 N.J. Super. 146, 154 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007). Because the officers' observation of the hand-to-hand transaction between defendant and Santiago and Tolentino supplied both reasonable suspicion to stop Santiago, and probable cause to arrest defendant, we conclude that had trial counsel filed a suppression motion, it would have been denied.
The Sixth Amendment right to the effective assistance of counsel does not require an attorney to file a meritless suppression motion. O'Neal, supra, 190 N.J. at 618-19. "[T]o satisfy the Strickland standard when an ineffective assistance of counsel claim is based on the failure to file a suppression motion, a defendant must establish that his Fourth Amendment claim is meritorious." Ibid. (internal quotation marks and citation omitted). Because we conclude that a motion to suppress would not have been meritorious, and would have been denied had it been filed, we reject defendant's claim that his attorney rendered ineffective assistance when he chose not to file such a motion.
In Point II, defendant maintains that he was denied a fair trial when Officer Colaner was permitted to testify on direct examination that the area around Avenue A and Avenue C was known by law enforcement as an area of "moderate to high" narcotics activity.*fn2 At a hearing outside the presence of the jury, the judge granted defendant's motion to exclude testimony that the residence where he was observed by Officers Colaner and Otlowski was known to police as a location for illegal drug sales; however, the judge agreed to permit the State to elicit testimony that the general area was a high crime area.
Defendant maintains that the jury could have improperly inferred his "guilt by association" or "guilt by location" based on the officers' testimony that the area in which he was arrested was a "high narcotics area." He further maintains that this testimony was particularly unfair because by the time of the second trial the State was aware that the home where defendant was standing when he conversed with Tolentino and Santiago was owned by his grandmother, thus providing a benign explanation for his presence at that location.
Defendant's arguments concerning the "high crime area" testimony lack merit. Such testimony has long been accepted in criminal trials. See State v. Artwell, 177 N.J. 526, 531 (2003); State v. Summers, 176 N.J. 306, 315-17 (2003). Moreover, the jury was aware from defendant's testimony that his family lived in the area, and the jury was in a position to reject as insignificant the officers' testimony that the area in question was known to be a high crime area. In light of Artwell and Summers, we perceive no abuse of discretion in the judge's decision to permit this testimony. See State v. Morton, 155 N.J. 383, 452-54 (1998) (observing that a reviewing court is obliged to afford substantial deference to a trial judge's evidentiary rulings, and will reverse only upon "a clear error of judgment" or "manifest denial of justice").
In a supplemental letter brief submitted pursuant to Rule 2:6-11(d), defendant draws our attention to the Court's recent decision in State v. McLean, 205 N.J. 438 (2011), in which the Court held inadmissible a police officer's testimony that, in his opinion, the activity that he had just observed constituted a drug transaction. Although defendant concedes that such testimony was offered only in the first trial, but not in the second, he nonetheless maintains that had this prejudicial testimony not been presented in the first trial, the jury would have acquitted him on all three counts, rather than having been deadlocked on counts two and three.
According to defendant, Colaner's impermissible testimony, although it occurred only during the first trial, had a direct impact on defendant ultimately being convicted of the distribution charges." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, we will not engage in speculation as to what verdict the jury would have reached in the first trial had such testimony not been presented.