April 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TOMIKO S. FLOYD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-04-0274 and 04-04-0354.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Payne and Hayden.
Defendant Tomiko S. Floyd appeals from two February 2, 2003 judgments of conviction on one count of receiving stolen property, Indictment No. 04-04-0354, and four counts of possession and intent to distribute controlled dangerous substances (CDS), Indictment No. 04-04-0274. For reasons that follow, we reverse his conviction for Indictment 04-04-0354 and affirm his conviction under the second indictment.
Tried in absentia on Indictment No. 04-04-0354, defendant was convicted by a jury on May 17, 2005 of third-degree receiving stolen property, an automobile, N.J.S.A. 2C:20-7. The next day, with defendant present, the trial commenced on Indictment No. 04-04-0274, and defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-7.1.
On indictment No. 04-04-0274, after the requisite mergers, the judge sentenced defendant to ten years in prison with a three-year parole disqualifier. On Indictment No. 04-04-0354, the judge sentenced defendant to a concurrent five-year term with two years of parole ineligibility. The judge also imposed the appropriate fines and penalties. This appeal followed.
We glean from the record that on December 20, 2004, the trial judge, in the presence of defendant, set a March 21, 2005 trial date for both indictments. The judge informed defendant that if he did not show up for the scheduled trials, the trials would proceed and he would be bound by the verdicts. Apparently, the March 21 trials did not occur, but the record does not contain an explanation. Defendant represented that he had appeared for the March 21 trial but his attorney was unavailable so he received a new trial date in April. Prior to the April trial date, defendant received a call from his attorney's office that the trial was postponed but he was not informed of the new trial date.
On May 16, 2005, both cases were again scheduled for trial but defendant did not appear. His defense counsel told the judge that he had been unable to reach defendant by phone as his cell phone had been disconnected and his home number went to an answering machine. Counsel did not indicate that he left a message. Defense counsel further stated that he had written defendant a letter on the previous Friday, telling him to appear for trial the following Monday. The judge decided to hold the trial without defendant being present because he had supposedly received actual notice. The trial began in the morning and the jury returned a guilty verdict that afternoon.
The following day, having been arrested on the warrant issued the previous day, defendant appeared in court. Defendant told the judge that he had not received any notice of the scheduled trial date as he had been verbally notified of the April trial adjournment without being informed of the new trial date. The defendant also stated that his attorney had sent the letter to the wrong address, where he had not lived in two years. Defendant explained to the trial judge that when he first appeared in court in reference to the two indictments, he had informed the court, on the record, of his current address, where he still lived. Defendant pointed out that when the sheriff's officers came that morning to arrest him on the warrant, they came to his correct address, which was in the court record.
The State produced Officer Davis Conrad of the Elizabeth Police Department, who was in court to appear at the trial on the second indictment. According to the officer, three weeks earlier he had arrested defendant on open warrants. At that time defendant stated, without giving a specific date, that he was due to appear in court, not the coming week but the following week, which, based upon the date of the conversation, Conrad took to mean the week of May 16.
Before sentencing, defendant, through new counsel, moved for a new trial. He produced a certification*fn1 from Officer Donnelly of the Elizabeth Police Department, showing that defendant was arrested by Officer Conrad on the warrant on Monday, May 9, only one week prior to the trial. Counsel had subpoenaed Officer Donnelly, who was available to testify. Additionally, counsel pointed out that there was no record in the court's file or the prior defense attorney's file of the court or defense counsel having sent any notice to defendant about the May trial dates. The assistant prosecutor did not disagree with the certification or request the officer appear for testimony. The prosecutor agreed that there was no record of defendant having been given notice of the May trial date, but argued that the absence of a record did not mean notice had not been given.
The trial judge denied defendant's motion for a new trial, on the basis that once a defendant had been given notice of a trial date, failure to appear on the trial date or any adjourned trial date was a waiver of the right to be present at trial. The judge stated he was satisfied that defendant had actual notice because he had told Conrad that he had to be in court on May 16.
On appeal, defendant raises the following issues for our consideration.
POINT I - DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED AS TO INDICTMENT NO.04-04-354 AS THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT HAD KNOWINGLY ABSENTED HIMSELF FROM HIS TRIAL.
POINT II - BECAUSE ORIGINAL TRIAL COUNSEL FAILED TO REPRESENT DEFENDANT IN ACCORD WITH THE RULES OF PROFESSIONAL CONDUCT THE MOTION FOR A NEW TRIAL MADE BY NEW COUNSEL SHOULD HAVE BEEN GRANTED AS TO BOTH INDICTMENTS.
POINT III - THE SENTENCE WAS EXCESSIVE.
A defendant's right to be present at each stage of his criminal trial implicates both the right of confrontation and due process. U.S. Const. amends. V, VI, XIV; N.J. Const. art. 1; Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d 353, 356 (1970). A defendant's presence at trial instills public confidence in the courts as instruments of justice. State v. Hudson, 119 N.J. 165, 172 (1990). In addition, a defendant's presence ensures an accused has the opportunity to communicate with counsel and participate in trial strategy. Ibid.
This right to be present at trial, however, is not absolute and does not preclude a court from proceeding or continuing in a defendant's absence when a defendant explicitly or implicitly waives his right to be present. State v. Luna, 193 N.J. 202, 209 (2007); State v. Finklea, 147 N.J. 211 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997). The pertinent Rule 3:16 provides:
The defendant shall be present at every stage of the trial . . . . Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found 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 acknowledgement of the trial date, or (2) trial has commenced in defendant's presence.
Hence where, as here, a defendant does not provide an express waiver, the standard is whether a defendant's conduct reveals a knowing, voluntary, and unjustified absence. Luna, supra, 193 N.J. at 210. In order to sustain a waiver of the right to be present, it must be shown that the trial date was actually communicated to the defendant. Hudson, supra, 119 N.J. at 182; see also State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996). "Trial in absentia is a severe consequence to flow from an implied waiver." State v. Whaley, 168 N.J. 94, 104 (2001). Thus, in absentia trials are proper only in exceptional circumstances. See State v. Givens, 353 N.J. Super. 280, 288 (App. Div. 2002).
Our review of the trial judge's decision requires us to determine whether, under the totality of circumstances, the trial judge abused his discretion in holding the trial in defendant's absence. Hudson, supra, at 184. Here, the record does not evidence that defendant had actual notice of the May trial date. While he was given notice in December 2004 of the upcoming trial scheduled for March 21, 2005, the record indicated that the trial was adjourned to April and then to May
16. Defendant testified that he received a phone call from someone in his attorney's office that the April trial was adjourned, but he was not given another date. No notice was sent by the court or his attorney to his correct address, which he had previously provided in court.
The State's argues, based on Finklea, supra, 147 N.J. at 219, that once a defendant is notified of the original trial date, he may be tried in absentia if he misses any adjourned date thereafter. We find such reliance misplaced and based upon a misreading of the facts of that case. In Finklea, the defendant failed to appear on the original trial date for which he received notice. The court adjourned the trial for two weeks to allow defense counsel to locate his client but he failed to appear then or after a one-day continuance. Our Supreme Court, rejecting the claim that the defendant could not be tried in absentia because he was not notified of the adjourned trial date, held that the defendant had waived his right to be present by failing to appear at the original trial date. Id. at 219-220. In contrast, in the case at bar, the record contains no evidence that defendant failed to show up at the original trial date.
Moreover, at the new trial motion, the judge relied on his faulty recollection of Conrad's testimony. Conrad had testified that defendant had informed him that he had a court date in about three weeks. Yet defendant had presented in his motion a copy of the warrant, which indicated Conrad arrested him one week before the trial, rather than the three weeks prior that Conrad recalled. However, the judge rejected this evidence as he mistakenly recollected the officer's testimony was that defendant specified that he had a court date on May 16.
Rule 3:20-1 governs new trials, and provides that "the trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." Here, the interest of justice required a new trial as the result of the deprivation of defendant's constitutionally protected confrontation and due process rights. In declining to grant that new trial, the judge relied on his incorrect recollection of Officer Conrad's testimony to find that defendant must have received actual notice. Because the record does not so reflect, and in the absence of evidence that defendant received actual notice, we are constrained to find, under the totality of circumstances, that the trial judge abused his discretion in finding that defendant knowingly, voluntarily and unjustifiably waived his right to be present at his trial. Hence, in the interest of justice, the trial judge should have granted defendant's motion for a new trial. Accordingly, we reverse and remand for a new trial on Indictment No. 04-04-0354.
Defendant also argues that because his defense counsel did not adequately represent him in preventing the first trial from proceeding in his absence, defendant's motion for a new trial should also have been granted as to the second indictment. We reject this argument as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Simply put, defendant has not demonstrated how counsel's alleged failure to adequately represent him at the first trial actually prejudiced defendant's second trial or would have led to a different result in that trial. See 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 without merit defendant's final contention that his sentence was manifestly excessive because the court imposed the maximum possible term of ten years with a three-year parole disqualifier for possession with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. Defendant does not challenge the judge's finding of aggravating factors and lack of mitigating factors but contends that, because he was a "small potato" distributing drugs merely to support his drug addiction, defendant should have been given a lesser sentence.
At sentencing, the judge reviewed the facts supporting defendant's conviction and his past criminal record and found no mitigating factors and three aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior criminal record and the seriousness of the offense of which he had been convicted, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). We find that the record amply supports the aggravating factors the judge found. Under the circumstances of this case, defendant's sentence of ten years with a three year parole disqualifier follows the sentencing guidelines, is reasonable, and does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
Affirmed as to Indictment 04-04-0274; reversed and remanded as to Indictment No. 04-04-0354.