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State of New Jersey v. Dawshon Fitzgerald

February 15, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAWSHON FITZGERALD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAWUD FITZGERALD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAWMEEN FITZGERALD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Numbers 03-08-00819, 03-08-00844, 03-08-00846 and 03-08-00849.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 13, 2011

Before Judges Carchman and Fisher.

Following a jury trial, defendants Dawshon Fitzgerald, Dawud Fitzgerald and Dawmeen Fitzgerald*fn2 were convicted of first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (Count One); second-degree conspiracy to distribute a controlled dangerous substance (CDS), heroin and/or cocaine, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(2), and N.J.S.A. 2C:5-2 (Count Two); second-degree employment of a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (Count Three); first-degree maintaining or operating a CDS production facility, heroin and/or cocaine, N.J.S.A. 2C:35-4 (Count Four); two counts of third-degree possession of heroin, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Dawmeen Count Six*fn3 ); two counts of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (Dawud, Dawshon Counts Five and Eleven); first-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Dawud, Dawshon Count Six); two counts of third-degree distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7 (Counts Seven and Thirteen); two counts of third-degree possession of cocaine, N.J.S.A. 2C:3510a(1) (Counts Eight and Fifteen); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (Count Nine); two counts of third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (Counts Ten and Seventeen); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (Count Twelve); second-degree distribution of heroin within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Fourteen); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Sixteen); second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Eighteen); first-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25 (Count Nineteen); third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f (Count Twenty); and second-degree possession of a firearm during the commission of a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1 (Count Twenty-One).

After mergers, the trial judge sentenced each of the Fitzgerald brothers to an aggregate sentence of life imprisonment plus 100 years, with a sixty-five year period of parole ineligibility. This sentence included an extended term, pursuant to N.J.S.A. 2C:43-6f, of life imprisonment with a thirty-year period of parole ineligibility on the conviction of first-degree leader of a narcotics trafficking network (Count One).

Defendants, individually, filed notices of appeal. We affirmed the convictions and remanded for resentencing. Defendants filed petitions for certification, which were denied. State v. Dawshon Fitzgerald, 196 N.J. 597 (2008); State v. Dawud Fitzgerald, 196 N.J. 597 (2008); State v. Daween Fitzgerald, 196 N.J. 597 (2008). The remand resulted in the same aggregate sentences being imposed on Dawmeen and Dawud; Dawshon's aggregate sentence remained the same except that his period of parole ineligibility was reduced by five years to a sixty-year period. Thereafter, they filed Petitions for Post-Conviction Relief (PCR). The PCRs were likewise denied. Defendants appeal, and we affirm.*fn4

I.

Our consideration of this appeal requires an expansive recitation of the facts.

A.

For several years until their arrests in late 2002, the Fitzgeralds were trafficking cocaine and heroin throughout New Jersey ("the Fitzgerald organization" or "the organization"). The Fitzgerald organization consisted of numerous "employees," who were involved in selling, transporting, and packaging the narcotics.

At trial, two members of the Fitzgerald organization -- Angel Aviles and Sherrodd Britt*fn5 - explained how the Fitzgeralds divided up the responsibilities for the organization. Dawmeen was responsible for the cocaine, Dawshon was in charge of the heroin, and Dawud was the "enforcer," ensuring that all of the organization's operations ran smoothly.

The Fitzgerald organization used an apartment in Newark (the Newark apartment) as a "lab" for cutting and packaging heroin and cocaine. After the heroin was obtained from a supplier, the employees broke it down into smaller quantities and packaged it for distribution.

The Fitzgerald organization sold the narcotics at an apartment in Elizabeth (the Elizabeth apartment). On any given day, three or four people worked inside the Elizabeth apartment selling drugs, while three or four others worked outside as lookouts. Aviles, Britt and Shariek Hiett were the primary sellers. Those inside of the house communicated with the lookouts using walkie-talkies. Dawud came to the Elizabeth apartment every day to check on operations.

The house opened for drug sales on a daily basis at 5:30 a.m. and closed at 10:00 p.m. On average, 500 to 600 customers came to the Elizabeth apartment each day. They bought an aggregate of fifty to seventy bricks of heroin per day, or a total of 3500 glassine bags, and between 800 and 1000 bottles of cocaine per day. The Fitzgeralds sold glassine bags of heroin for $7 each, whereas the going rate in Elizabeth at that time was $10 a bag. Each bottle of cocaine sold for $5. The profits from the cocaine sales were between $2500 and $5000 per day. Any change in the sale price of drugs required prior approval.

The Fitzgerald organization kept a .38 caliber handgun and a TEC 9, an assault firearm, at the Elizabeth apartment. At some point, the .38 caliber handgun was missing, and the TEC 9 was also removed from the house and taken to another location. Dawshon also had a .40 caliber handgun that he had taken from Jahmin Muse, an employee of the Fitzgerald organization, which was sometimes kept at the Elizabeth apartment.

According to Aviles, the Fitzgerald organization relied on code words when referring to drugs. For example, in a phone conversation with Aviles, Dawmeen referred to bricks of heroin as "doughnuts" and to a pack of cocaine as a piece of "candy." Members of the organization also referred to bricks of heroin as "cheeseburgers" and vials of cocaine as "French fries."

The Fitzgerald brothers continuously communicated with Aviles and other members of the organization about resupplying the Elizabeth apartment with cocaine and heroin. When the supply of heroin and cocaine was running low at the house, Aviles or Britt would contact the Fitzgerald brothers for more. Typically, Aviles or Britt would call Dawmeen when the cocaine supply was low and Dawshon when the heroin was low. Defendants would then drive drugs from the Newark apartment to the Elizabeth apartment or have their employees do so.

For example, during a phone call on November 20, 2002, Aviles told Dawshon that he had only eight bricks of heroin left. Aviles told Dawshon to bring the drugs because there were a lot of customers to serve. In another call on November 27, 2002, Dawmeen asked Aviles how many "walls" were left. By "walls," Dawmeen was referring to packs of cocaine.

The Fitzgerald brothers communicated with Aviles about picking up money from the drug sales and either collected the money themselves or had it picked up for them. The Fitzgerald brothers also kept track of how much money was coming back to them on the drug sales; on multiple occasions, Dawmeen and Dawshon were angry that money from the sales was short and questioned Aviles about this.

The Fitzgerald brothers communicated with Aviles about picking up money from the drug sales and either collected the money themselves or had it picked up for them. The Fitzgerald brothers also kept track of how much money was coming back to them on the drug sales; on multiple occasions, Dawmeen and Dawshon were angry that money from the sales was short and questioned Aviles about this.

The Fitzgerald brothers often communicated with their employees about police presence and activity. The organization used lookouts to monitor police presence around the Elizabeth apartment.

The Fitzgeralds paid their employees on a weekly basis. The employees were paid in cash, and each was paid a different amount. Usually Dawud or Dawshon would organize the money and then give the money to Aviles or another employee, who distributed it to the workers. When the employees did something wrong, money was deducted from their pay.

The Fitzgerald brothers did not tolerate employees selling their own drugs at the Elizabeth apartment. For example, on November 27, 2002, Dawmeen realized that bottles of cocaine were not his because they were too small. Dawmeen threatened that because of this, Aviles and Patterson would be "bleeding today." At another time, Dawshon warned Aviles that he was going to come to the house to check if anyone was selling other drugs there, and if so, everyone in the house was "gonna be hit," meaning that they would be charged money or beaten up. Similarly, in November 2002, Dawmeen, Dawshon, and three employees went to Muse's apartment and threatened him with guns because he had been selling his own drugs at the Elizabeth apartment.

On November 6, 2002, Detective Clifford Spencer attempted to make an undercover purchase of raw, uncut heroin from John. Spencer met John at the marina in Elizabeth. During their encounter, John indicated that "we['re] willing to sell the grams [of heroin] at a nice price [be]cause we['re] doing good right now," meaning the Fitzgerald organization was making good money. John stated that the organization was selling seventy to eighty bricks a day and that each brick was selling for $350. John told Spencer that he would get Spencer a price on the heroin and instructed Spencer to call the next day for the price. John also told Spencer that he would let the "two guys in the house by the phones" know why Spencer was calling and to give Spencer the price that was agreed upon. John further indicated that if Spencer was not satisfied with the price that they could "rearrange things" and that "something can always be worked out." At the conclusion of the meeting, John said that things had been "working for us for four years straight."

One means by which the members of the organization communicated was through cellular telephones that the Fitzgeralds provided to their employees. During their various telephone communications, members of the organization discussed matters related to the trafficking of heroin and cocaine.

Between November 19, 2002, and December 17, 2002, the members of the Union County Prosecutor's Office Narcotics Strike Force - which included officers from the Elizabeth Police Department, the United States Drug Enforcement Administration (DEA), the Union County Prosecutor's Office and the Linden Police Department - were involved in a wiretap investigation in which they monitored intercepted telephone calls within the Fitzgerald organization. Pursuant to a warrant, the police wiretapped three cellular phone numbers used by members of the Fitzgerald organization. The phone numbers were in the name of "Tamisha Fitzgeral" or "Tamisha Fitzgerald." The phones were identified as Wiretap 4, Wiretap 4 push-to-talk,*fn6 Wiretap 5, Wiretap 5 push-to-talk, Wiretap 6 and Wiretap 6 push-to-talk.

The monitor stations for these phones were in the same room, and all of the officers monitored each of the wiretapped phones. During the monitoring, a computer recorded: the date, time and duration of the call; the number of the phone being used; the number that was dialed; the wiretap number from which the call originated; and whether the call was incoming or outgoing. The officers monitored the calls by listening to each one and determining whether it was pertinent to the investigation. If so, the officer listened to the call, and once the call was completed, the officer would write a synopsis or a verbatim transcription. As the officers monitored the phone calls, they provided information to law enforcement teams conducting surveillance upon the Fitzgeralds and other associates of the organization.

Following the completion of the wiretap investigation, Detectives John Sheridan and Suzanne Deegan were able to determine the individuals who used each of the wiretapped phones based on the familiarity with the individuals' voices the detectives developed over the course of the investigation. Detective Sheridan concluded that Wiretap 4 was primarily used by those who sold drugs at the Elizabeth apartment, including Britt, Aviles and Hiett, as well as Al Raheem Campbell and Al Shariek Harris. This phone was continuously in contact with Wiretap 5 and Wiretap 6. Dawud was the primary user of the phone under Wiretap 5, and Dawshon was the primary user of the phone under Wiretap 6.

The computer used during the wiretap investigation recorded the phone numbers of the incoming and outgoing calls, which included landline phone numbers. Based on this information, the police obtained phone subscriber information, from which the police ascertained the identities and addresses of the Fitzgerald brothers, as well as those of their associates and the organization's stash houses.

On December 17, 2002, at 6:00 a.m., officers from the Elizabeth Police Department, the DEA, the Union County Prosecutor's Office, the Newark Police Department, and the Roselle Police Department simultaneously executed nine search warrants at the Elizabeth apartment, five other Elizabeth apartments, the Newark apartment, and a Roselle apartment.

Dawmeen was arrested at one of the Elizabeth apartments. A total of $89,241 was found hidden in various locations throughout the apartment, including inside dresser drawers, under a baby's crib mattress, and under the couch.

Dawud was arrested at another of the Elizabeth apartments, where he was found hiding in a closet. In the residence, Detective Deegan found the cellular phone that was the subject of Wiretap 5. The police also recovered a total of $6447 at that location.

Dawshon was arrested at the Newark apartment. The police found the cellular phone that was the subject of Wiretap 6.

From these nine locations, the police recovered, among other things: the cellular phones that were the subject of the wiretaps; items used to weigh and package drugs and drug paraphernalia; a total of 188.876 grams of heroin, 3.2 grams of cocaine and 99.39 grams of procaine (a prescription anesthetic); and a total of $739,289 in cash.

B.

As we have noted, at trial, the State relied, in part, on evidence amassed from the wiretaps. Before trial, a hearing was held to address the admissibility of the recordings of the wiretapped conversations. See State v. Driver, 38 N.J. 255 (1962). During the Driver hearing, Union County Prosecutor's Detective Richard Stamler described the wiretap investigation. He was the lead detective in the investigation. He monitored the intercepted phone calls and instructed other monitors. The trial court ruled that the recorded conversations were admissible.

C.

Following their convictions, defendants appealed. On their direct appeal, they collectively and individually raised the following issues:*fn7

I. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE[,] THE ELECTRONIC SURVEILLANCE AUTHORIZATIONS AND RELATED EVIDENCE AS WELL AS ALL EVIDENCE OBTAINED THROUGH THE VARIOUS SEARCH WARRANTS ISSUED.

A. THE EVIDENCE OBTAINED FROM THE EXECUTION OF THE VARIOUS SEARCH WARRANTS AND THE SUPPORTING AFFIDAVIT'S FAILURE TO ESTABLISH A SUFFICIENT BASIS TO AUTHORIZE THE ISSUANCE OF "NO KNOCK" SEARCH WARRANTS [SIC].

B. THE EVIDENCE OBTAINED FROM THE ELECTRONIC SURVEILLANCE AUTHORIZATIONS [SIC].

II. THE TRIAL COURT'S CHARGE TO THE JURY WAS INADEQUATE, INSUFFICIENT, AND FATALLY DEFECTIVE IN NATURE.

A. THE TRIAL COURT ERRED BY REPEATEDLY INSTRUCTING THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).

B. THE TRIAL COURT FAILED TO PROVIDE THE JURY ADEQUATE GUIDANCE ON HOW THEY SHOULD ASSESS THE CREDIBILITY OF CO-DEFENDANTS ANGEL AVILES AND SHERROD BRITT IN LIGHT OF THE PLEA AGREEMENTS THEY ENTERED INTO WITH THE STATE (NOT RAISED BELOW).*fn8

C. THE TRIAL COURT'S CHARGE TO THE JURY REGARDING ACCOMPLICE LIABILITY WAS INADEQUATE, INSUFFICIENT AND FATALLY DEFECTIVE IN NATURE (NOT RAISED BELOW).*fn9

D. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY ON "EMPLOYING A JUVENILE" (NOT RAISED BELOW).*fn10

E. THE TRIAL COURT'S INSTRUCTION ON THE "FINANCIAL FACILITATION" COUNT WAS PATENTLY INSUFFICIENT, UNCLEAR, AND CONFUSING.*fn11

F. WHEN CHARGING THE "LEADER" COUNT, THE TRIAL COURT ERRONEOUSLY EMPHASIZED THAT DEFENDANT NEED ONLY HAVE UPPER-ECHELON STATUS IN RELATION TO "ONE OTHER" PERSON IN THE ENTERPRISE.*fn12

III. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY SURRENDERING CONTROL OF THE COURTROOM TO THE SHERIFF WITHOUT ADEQUATE INQUIRY (NOT RAISED BELOW).*fn13

IV. THE TRIAL JUDGE ERRED BY ADMITTING CERTAIN EVIDENCE.

A. THE TRIAL COURT ERRED IN ADMITTING A BAIL RECEIPT, WHICH WAS AN UNAUTHENTICATED HEARSAY DOCUMENT, WHICH THE STATE RELIED UPON TO PROVE A LINK BETWEEN DAWUD AND THE $500,000 IN CASH THAT WAS FOUND AT ANOTHER RESIDENCE, IN ORDER TO CONVICT DAWUD OF "FINANCIAL FACILITATION."*fn14

C. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY BY AVILES AS TO WHAT DEFENDANT AND OTHER ALLEGED CO-CONSPIRATORS "MEANT" IN CONVERSATIONS TO WHICH AVILES HIMSELF WAS NOT A PARTY.*fn15

V. THE TRIAL JUDGE ERRED IN DENYING DAWUD'S MOTION TO SEVER AND LIMITING CROSS-EXAMINATION OF WITNESSES REGARDING THE LEADER OF A DRUG TRAFFICKING NETWORK CHARGE.*fn16

VI. THE TRIAL JUDGE ERRED IN DENYING DAWUD'S MOTION FOR ACQUITTAL ON THE FINANCIAL FACILITATION CHARGE.*fn17

VIII. THE TRIAL JUDGE ERRED IN PASSING SENTENCE ON THESE DEFENDANTS.

A. THE BASE SENTENCES AND BLAKELY AND NATALE CONSIDERATIONS.

B. THE IMPOSITION OF EXTENDED TERMS.

C. THE DETERMINATION OF PAROLE INELIGIBILITY PERIODS.*fn18

D. THE IMPOSITION OF CONSECUTIVE TERMS.

E. MERGER ISSUES.*fn19

In a sixty-eight page written opinion of June 30, 2008, we affirmed the convictions but remanded for resentencing.*fn20

Following their various and unsuccessful petitions for certification, defendants filed their PCRs.

In his PCR, Dawmeen raised the following issues:

POINT ONE: THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT THE SUPPRESSION HEARING THEREFORE, THE CONVICTION SHOULD BE REVERSED [SIC].

POINT TWO: THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON HIS DIRECT APPEAL THEREFORE THE CONVICTION SHOULD BE REVERSED [SIC].

In the brief in support of Dawmeen's PCR, counsel raised the following issues:

POINT I

PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE TIMELY FILING OF THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS

POINT II

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. Petitioner Asserts That Trial Counsel Was Ineffective In His Failure To Zealously Challenge The Applications For The Wiretap And The "No-Knock" Warrants

1. Trial Counsel was Ineffective for his Failure to Adequately Challenge the Authorization of the Interceptions of Wiretap Communications

a. Trial Counsel Was Ineffective In His Failure To Request A Hearing To Challenge The Qualifications Of The Police Detectives And Expose Defects In The Affidavit

b. Trial Counsel was Ineffective for Failure to Move for Disclosure of a Confidential Informant Mentioned throughout the Wiretap Application Affidavit by Detective Sheridan

2. Trial Counsel was Ineffective In his Failure to Adequately Challenge the Application for ...


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