June 22, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLTON RAY GOLDSBORO A/K/A BRIAN HART, DEFENDANT-APPELLANT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012
Before Judges Payne and Hayden.
Defendant, Carlton Ray Goldsboro, appeals his conviction, following a jury trial, for second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b and his sentence of nine years in custody with a five-year period of parole ineligibility. On appeal, he raises the following arguments through counsel:
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PREJUDICIAL JURY INSTRUCTIONS WHICH IMPROPERLY INFORMED THE JURY THAT DEFENDANT STIPULATED TO BEING IN A CLASS OF PERSONS FORBIDDEN FROM OWNING A FIREARM (Not Raised Below).
THE COURT ERRED IN FAILING TO EXCUSE A SITTING JUROR AFTER SHE REVEALED THAT SHE HAD SOCIALIZED WITH MEMBERS OF THE VINELAND POLICE DEPARTMENT THEREBY VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL (Not Raised Below).
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN DEFENSE COUNSEL FAILED TO MAKE TIMELY OBJECTIONS AND STIPULATED TO DEFENDANT BEING A "CERTAIN PERSON" NOT TO OWN A FIREARM, THEREBY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHTS AND HIS RIGHT TO A FAIR TRIAL.
A. Defense Counsel Failed to Object to the Prosecutor's Leading Questions Posed to The State's Witness.
B. Defense Counsel Severely Prejudiced Defendant By Stipulating to the Defendant Being in a Class Of "Certain Persons" Not to Own a Handgun.
C. Defense Counsel Further Prejudiced Defendant By Failing to Call Detective Gami Cruz to Testify During His Case-in-Chief.
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
In addition, defendant submitted a pro se supplemental brief, in which he argued:
THE ARREST OF THE DEFENDANT AND THE SEARCH PURPORTEDLY INCIDENT TO THE ARREST WERE UNLAWFUL, AND THE WEAPON FOUND WAS INADMISSIBLE AS THE FRUIT OF THE POISONOUS TREE.
THE PROSECUTOR'S LEADING QUESTIONS POSED TO THE STATE'S WITNESS AMOUNTED TO PROSECUTORIAL MISCONDUCT AND DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW.
Following the filing of a motion to suppress, on May 8, 2009, a hearing was held at which testimony was offered by Detective Gami Cruz and by defendant. Det. Cruz, a fourteen-year member of the Vineland Police Department, testified from memory, without reviewing his report of the matter. He stated that, on March 28, 2007, he was assigned to the Department's narcotics unit, but was working for Cumberland County's narcotics task force. During an investigation prior to executing a search warrant at the home of a known drug dealer, William Mann, Cruz learned from a confidential informant sent to the site that, in addition to Mann, defendant was present on the premises. After obtaining that information, Cruz called dispatch, and he was informed that defendant had an outstanding warrant for his arrest. When the arrest team was notified that defendant was present, a number of them knew who defendant was, and they indicated that they could identify him as the result of prior narcotics encounters.
As the team closed in on the house where Mann and defendant were said to be located, an officer conducting surveillance notified the other officers that the two subjects had left the area in a car. Nonetheless, the police, led by Cruz, entered the house pursuant to the warrant. Approximately fifteen or twenty minutes later, while the police were questioning Mann's girlfriend, Mann returned, with defendant and a young black male riding in the car as passengers. The arrest team approached the car and arrested Mann for drug distribution, as witnessed by the surveillance officer, and arrested defendant on the outstanding warrant. At the hearing, Det. Cruz testified that the surveillance officer had also reported witnessing drug sales by defendant in the period close to his arrest.
Once arrested, Cruz brought Mann into the front part of the house by the police, and defendant was placed in the house's center part, at which point Det. Cruz heard Detective Ramos yelling "Gun, Gun, Gun." After a gun was observed and was secured, defendant was transported to police headquarters. In a search incident to arrest, conducted while defendant was still at the house, crack cocaine was found on defendant's person.
At police headquarters, Miranda*fn1 warnings were given to defendant. Following a waiver of his rights, defendant participated in a lengthy taped interview, during which he eventually admitted that the gun was his.
After the State had completed its initial questioning, the following exchange with the court occurred:
THE COURT: Let me just ask a couple of quick follow-ups. Detective, you mentioned several times that it was determined that there was a warrant outstanding for Mr. Goldsboro; I take that was a warrant for his arrest?
THE WITNESS: Yes, it was a body warrant for maybe a contempt of court, so forth, I believe it was.
At the conclusion of Det. Cruz's testimony, defendant testified on his own behalf. He stated that, upon driving up to the house, he was ordered to exit the car by Officer Robert Bernard, who immediately "patted [him] down thoroughly, and placed [him] in handcuffs, and walked [him] into the house." He asserted that he was never informed by the police that they had a warrant for his arrest. Indeed, he claimed:
Sir, I don't recall having a warrant for my arrest because I had just maxed out off of house arrest at the time. I had just maxed out off of house arrest when that raid took place.
I just came home for possession of a firearm for unlawful purpose. I came home '06, and this raid took place '07. I just maxed out.
At a later point, defendant stated that he spent three years in prison, and then was released on house arrest. However, he violated the house arrest and was placed in county jail until December 2006. This incident did not occur until March 2007.
Further, defendant testified that when he posted bail for the charge that he was arrested for that day, he only posted bail for possession of a firearm. "No additional [de]tainers, no warrants, nothing additional." Defendant additionally testified that none of the police officers knew his identity, and that he had to tell them who he was.
When asked about his confession, defendant claimed without elaboration that it was coerced.
At the conclusion of the hearing, the court rendered an opinion on the record. After reviewing the testimony of Det. Cruz and defendant, the court made credibility determinations, noting that Cruz's testimony was "concise, was responsive; his answers were not evasive; they were internally consistent. His answers were not argumentative. He answered questions quickly, without delay. His answers were clear; they were very detailed; and they were from memory." The court continued: "There was nothing abut his demeanor, about his vocal inflection, about his body language that would suggest to this court that he was not testifying candidly and truthfully." Accordingly, the court found Det. Cruz's testimony to be "credible, believable and truthful."
With respect to evidence of grounds for arrest, the court stated:
[Det. Cruz] testified, and subject to the rigors of cross-examination, that there was a warrant check done after they learned the individual's identity of the other person on the front porch; this person that had been seen engaging in what appeared to be narcotics transactions before the . . . execution of the search warrant; these hand to hand transactions observed by Detective Farabella, and that dispatch had confirmed that an outstanding warrant had existed.
Although the court acknowledged defendant's denial of the existence of the warrant, the court observed that a warrant could issue without notice to its subject. "It happens all the time." Thus, defendant's belief that there was no warrant did not mean one did not exist. The court concluded:
I don't find at all that the police are just making this up and somehow concocting a scheme after the fact to justify his search and his arrest that day. I find quite the contrary. So, what we have here, as pointed out by the State, is really a multiple set of circumstances justifying his detention, his arrest, and a search incident to arrest.
The "multiple set of circumstances," the court held, consisted not only of evidence of the warrant but also evidence that defendant had been engaged in drug transactions during the period of police surveillance shortly before defendant's arrest.
Thus, the court found probable cause to have existed for defendant's arrest and for the search incident to arrest. For those reasons, the court denied defendant's motion to suppress evidence consisting of the gun found at the time of that arrest. It held that issues of gun ownership and control could be resolved at trial.
Prior to the commencement of trial, drug charges against defendant were dismissed, as well as weapons charges, with the exception of the charge of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. Once trial commenced, the State presented three witnesses to prove that defendant possessed the gun that was seized at the time of his arrest:
Det. Robert Bernard, Det. Paul Shadinger, and Det. Antonio Ramos.
Det. Bernard testified that, after the car driven by Mann returned to the house, he and Det. Shadinger approached the vehicle's passenger side, and Det. Cervini and Det. Cruz, who was in charge of the operation, approached the driver's side. Detective Shadinger ordered defendant to exit from the vehicle, and he handcuffed him, using Det. Bernard's handcuffs. Det. Bernard escorted defendant into the house after Mann, who was also handcuffed. No search of defendant occurred while he remained on the street. When asked to describe how defendant was acting once he entered the house, Det. Bernard stated:
Very uncooperative. He had real baggy clothes on and his pants, like, kept on falling. So, he would like - he was handcuffed on the back and he was pulling them up and just squirming around. You know, I gave him a couple of times, instructions just to relax, just to stay there. He continued to squirm around. At one point, I told him to sit down on the floor, because we had another suspect in the living room and my attention was there too, as well, just to make sure that he was secured properly and everything else before I actually started searching Mr. Goldsboro.
Det. Bernard continued his description by stating that defendant "was grabbing his pant and swinging it around to get in his right pocket to the small of his back." Although the detective thought that defendant was merely "adjusting his pants and bringing them up," when he eventually obeyed the detective's command to sit down, "there was a movement to the right of his body, and I heard a big loud thump at that point." The "thump," it turned out, "was a firearm that was tossed in the room." Although Det. Bernard did not see defendant toss the weapon, he testified that the act had been witnessed by Det. Ramos, who yelled, "Gun, gun, gun." Shortly thereafter, Det. Ramos secured the gun. Det. Bernard then got defendant to his feet to search him, and in doing so, noticed his hand was in his back pocket.
Det. Shadinger confirmed that he had ordered defendant from the car and cuffed him, but did not pat him down. He also confirmed that Det. Bernard escorted defendant into the house. The detective testified that he did not have any further dealings with defendant.
Testimony was also offered by Det. Ramos, who stated that he was working in the house's dining room, logging in evidence, when defendant was brought in by Det. Bernard. Prior to commencing his work, the room had been thoroughly searched. As Det. Ramos watched, defendant was ordered to sit on the floor, but instead, he appeared to be "messing with his cuffs." Even after sitting, defendant did not sit down flat, but rather, continued to squirm around. The detective described what he saw next as follows:
So, as I'm looking at him I see Mr. Goldsboro slouch forward, with his hands back. He's slouching forward. As he slouched forward he turns, he leans to the left, and then does a downward and upward movement. When he does that I see a chrome handgun fly out.
As soon as I see it come out I hear the thump, I'm looking at it. And, I'm only two feet away from this handgun. I see the brown handle on it. It's chrome. I jump up; I yell, "Gun," because I wanted them to hear me, my officers in the residence. I yelled, "Gun, gun," grab out and grab the gun. . . . Secure it.
After the testimony of Det. Ramos was completed, the State rested, noting that the defense had stipulated to the fact that defendant was a person as to whom N.J.S.A. 2C:39-7 could apply, and thus it was not necessary to enter into evidence a judgment of conviction satisfying N.J.S.A. 2C:39-7b. When asked by the court how the stipulation was to be communicated to the jury, defense counsel agreed that the prosecutor could read it as part of his closing. In this regard, the prosecutor stated without objection that he would read that portion of the charge previously supplied by the court to counsel that provided: "In this matter, the defense and the State have stipulated, or agreed, that the defendant is of a class of persons prohibited from owning, purchasing, or possessing a firearm." That stipulation was, in fact, offered to the jury, and its terms were included in the court's jury instructions.
After deliberations, the jury found defendant guilty of the single charge against him. At sentencing, defense counsel argued for a five-year sentence with five years of parole ineligibility. However, the judge imposed a nine-year sentence with five years of parole ineligibility. He found aggravating factor three, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3) after noting that, as a juvenile, defendant had nine arrests with six adjudications for burglary (twice), conspiracy to distribute a controlled dangerous substance (CDS); distribution of CDS; a weapons offense; and hindering his own apprehension. Additionally, as a juvenile he had one probation violation. As an adult, defendant had nine arrests, with one disorderly persons conviction for failure to give CDS to the police and one indictable conviction for "unlawful possession of a weapon."*fn2 Additionally, he had three pending matters, two of which were scheduled for trial. The court also found aggravating factor six, the extent of defendant's prior record, N.J.S.A. 2C:44-1a(6) and aggravating factor nine, the need for deterrence, N.J.S.A. 2C:44-1a(9), in consideration of the fact that defendant was a repetitive offender. Aggravating factors three and six were given "moderate to substantial weight"; aggravating factor nine was given "substantial weight." Additionally, the judge found mitigating factor eleven, that defendant's imprisonment would create a hardship on his family, N.J.S.A. 2C:44-1b(11), but gave that factor "slight weight."
Defendant has appealed.
On appeal, defendant claims error by the court in instructing the jurors that defendant had stipulated that he was among a class of persons forbidden from owning a firearm. Defendant takes the position that, by accepting a stipulation that did not disclose defendant's status as convicted felon, the court was able to bypass jury voir dire inquiring if jurors could be fair and impartial if made aware of defendant's felon status. Such an inquiry, defendant maintains, was required by the Supreme Court in State v. Brown, 180 N.J. 572 (2004), a decision holding that trial of a "certain persons" charge need not be bifurcated to first establish weapons possession and then to establish that the defendant was a convicted felon, but also holding that if a unitary trial occurred, the jury had to be carefully instructed as to its use of evidence that the defendant was a convicted felon. Id. at 582-83. Sanitization of the prior offense was required, id. at 584-85, as were appropriate measures to determine whether knowledge by prospective jurors that the defendant was a convicted felon would affect their ability to be fair and impartial in determining the possession of a weapon offense. Id. at 585.
However, there is a crucial difference between this case and Brown. Here, the jury was informed only that defendant belonged to a class of persons prohibited from possessing weapons. Unlike Brown, where the charge that the defendant was a convicted felon was disclosed to the jury at the outset, in the present case, that information was never conveyed. Under these circumstances, we see no error in the court's conduct of voir dire or in its instruction to the jury.
Defendant argues additionally that he received ineffective assistance of counsel, as measured by the standards of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), as the result of defense counsel's agreement to stipulate to his status as a convicted felon. We disagree.
In order to set forth a viable claim of ineffective assistance of counsel, defendant was required to present prima facie evidence that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We fail to perceive any incompetence in avoiding the introduction into evidence of defendant's prior qualifying conviction, even if presented in sanitized form, or in not otherwise emphasizing to the jury the nature of the conduct that led to the prohibition against defendant possessing a weapon. Further, we fail to see how disclosure of evidence that defendant was a convicted felon could in any respect have aided his case. We thus reject defendant's arguments in this regard.
Defendant has raised other claims of ineffective assistance of counsel. However, we defer consideration of those claims until they can be considered by the trial court pursuant to a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460-61 (1992).
Defendant next claims that the court erred in failing to excuse a sitting juror who, during the course of trial, disclosed that she might know some Vineland police officers by their first names, having occasionally socialized with police friends of the little brother of a person who had been in the juror's wedding two months ago. The juror stated at sidebar:
We're not that close with him but we have [been] drinking with some of his friends. I haven't recognized any of the people I've drunk with, but I would only know them by their first name so -
Following disclosure of this evidence the court instructed the juror that, if she recognized a police witness, she should listen to the testimony and then inform the court, which would then determine whether the juror should be excused. Thereafter, Det. Shadinger and Det. Ramos were called as witnesses. The juror gave no indication that she recognized or knew either of them. As a consequence, we find no basis for reversal, prejudice or a potential for prejudice not having been demonstrated. We decline to disturb on appeal the court's discretionary determination to retain a juror who had offered no evidence of disqualifying bias. State v. Singletary, 80 N.J. 55, 62 (1979).
Addressing the last point in defendant's counseled brief, we reject his claim that his sentence was excessive. In this regard, defendant does not offer any mitigating factors that the court overlooked, or argue that the three aggravating factors upon which the court relied were inappropriately cited. He argues only that the court gave undue emphasis to the aggravating factors, all of which were derived from an examination of his criminal history.
However, our review of the sentencing transcript satisfies us that the court properly supported and weighed the aggravating and mitigating factors cited by it and imposed a sentence within the range authorized for the crime committed. As such, the sentence imposed was within the court's sentencing discretion, and we decline to disturb it. State v. Bieniek, 200 N.J. 601, 607-09 (2010).
In a pro se supplemental brief, defendant argues that his arrest and the search conducted pursuant to that arrest were illegal, and thus evidence of the weapon that was found should have been suppressed as fruit of the poisonous tree. In support of his position, defendant argues that, after the police approached the vehicle driven by Mann, they "searched and cleared defendant of any criminal conduct including a warrant check." Thus, he claims, probable cause for his arrest was lacking.
We reject defendant's argument as factually inaccurate. Our review of the transcript of the suppression hearing satisfies us that no evidence was presented that would have indicated that, upon conducting a warrant check, defendant was "cleared." Moreover, although defendant claimed at the suppression hearing that he was searched prior to entering the house, thereby challenging police testimony that he threw the gun after entering the dining room, unrefuted testimony at trial indicated that a search was deferred until after defendant had been brought inside and after the weapon had been thrown away from his person. We thus find defendant's argument to be unsupported, and conclude that the court properly premised its decision on the suppression motion on Det. Cruz's testimony regarding the existence of a warrant and regarding defendant's observed sales of CDS. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Handy, 206 N.J. 39, 45 (2011).
As a final matter, defendant argues that the prosecutor's leading questions posed to the State's witnesses constituted prosecutorial misconduct. As illustrations, defendant cites to questions that established that defendant was taken into custody; that a decision was made by the police to approach the car; that the officers did not wish to attract attention when arresting defendant and Mann; that the police usually search arrestees immediately but did not do so in this case; that the dining room was searched before defendant was brought into it; and there were no guns found.
While we agree that the questions highlighted by defendant were in fact leading, our review of the unrefuted evidence at trial satisfies that the introduction of evidence in this manner did not result in plain error. State v. Macon, 57 N.J. 325, 336 (1971). Indeed, we find the evidence presented of defendant's guilt through the testimony of Det. Bernard and particularly Det. Ramos to have been overwhelming.