October 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRANCE CLYBURN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2012 -
Before Judges Yannotti and Harris.
Defendant Terrance Clyburn appeals from the February 3, 2010 order denying his petition for post conviction relief (PCR). We affirm.
Clyburn was tried by a jury and convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree distribution of CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1).
After merger, application of an extended term, and a remand for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005) and State v. Thomas, 188 N.J. 137 (2006), Clyburn's aggregate sentence was fixed at eleven and one-half years in prison with a five and one-half-year period of parole ineligibility. We affirmed the conviction and ultimate sentence. State v. Clyburn, No. A-1480-05 (App. Div. Dec. 6, 2007); State v. Clyburn, No. A-0423-08 (App. Div. Mar. 4, 2009). The Supreme Court denied further review. State v. Clyburn, 195 N.J. 419 (2008).
Clyburn filed a pro se petition for PCR on September 24, 2008. After the assignment of counsel, the Law Division conducted a hearing on the petition in February 2010. The court focused primarily on Clyburn's claims that his trial and appellate attorneys had failed to effectively represent him. Finding that Clyburn's arguments were meritless and his grievances with defense counsel explained as appropriate exercises of trial strategy, Judge Jared D. Honigfeld declared that he "could find absolutely no basis to grant the application" and entered an order denying PCR. This appeal followed.
Before assessing Clyburn's contentions on appeal, we recite the facts that were adduced at trial as reflected in our earlier opinion:
On August 31, 2003, Paterson Police Department narcotics officers, Detective Sergeant Thomas Trommelen, Detective Vaughn Patterson, Detective William Palomino, and Patrolman Ronald Altmann, conducted a drug investigation in the area of a multi-family dwelling located at 151 Temple Street, in Paterson. The building is located within 1000 feet of a school.
The police officers divided themselves into two teams. Altmann and Trommelen acted as surveillance officers, while Palomino and Patterson formed the arrest team. The surveillance team's duty was to not only identify individuals to be arrested, but also to relay that information to the arrest team. Based on the relayed descriptions, the arrest team would apprehend the suspects.
Upon arriving at the scene, the officers positioned themselves at different locations. Trommelen and Altmann remained in their parked, undercover vehicles, with an unobstructed view of the building. The surveillance officers observed defendant, who was standing at the top of the steps leading to the front door of the building, talking to a second male, who was standing at the foot of the stairs. The second male was wearing blue jeans, a white T-shirt, and a Lakers hat.
At about 5:00 p.m., an unidentified third male approached the second male on a bicycle. After speaking briefly, the second male held up two fingers. The second male walked to defendant, who then removed a clear, plastic baggie from his pants, and handed the second male several small items. The second male handed the items to the bicyclist, who in turn, after presenting paper money to the second male, left the scene. Based on these events, Altmann and Trommelen believed that they had just observed a "hand-to-hand drug transaction." After the bicyclist left, Trommelen attempted to follow him, but lost sight of him. Trommelen then returned to the scene to set up a second surveillance point.
About twenty minutes after the transaction with the bicyclist, a white Jeep Cherokee operated by a female arrived in the area. The second male jogged across the street, conversed with the female driver, and returned to defendant, holding up one finger. Again, defendant removed a clear, plastic baggie from his pants and gave the second male an item. The second male returned to the Jeep, and exchanged the item for money with the driver. The second male then returned back to defendant, handing defendant money, which defendant again placed into his pocket.
At the conclusion of the transaction, the Jeep left the area. Trommelen, after radioing a description of the Jeep and its license plate, then pursued the Jeep. The Jeep pulled into a gas station, whereupon Patterson and Palomino pulled up behind it, while Trommelen parked in front of it. The officers approached the Jeep, asking the female driver to exit. After Palomino saw the operator throw a plastic bag onto ground, the officers arrested the driver. One plastic baggie of suspected crack cocaine was recovered at the scene. The seized substance later tested positive for cocaine.
Shortly after the arrest of the female driver, Detectives Patterson and Palomino returned to the building at 151 Temple Street, having received in the interim a description of defendant and the second male involved in the drug transactions. When the detectives arrived, defendant ran into the building. The detectives yelled, "Stop, Police," but to no avail. Defendant ran up the stairs, locked himself in an apartment, and turned on a radio or television loudly.
The detectives forced the apartment door open, found defendant walking out of a bathroom, and heard water flowing into the toilet tank. A clear, empty, wet plastic baggie was found on the bathroom floor. At the time of arrest, defendant had $385 in his possession. However, no drugs were either found on him or in the apartment. [State v. Clyburn, supra, slip op. at 3-6.]
From this record, Clyburn presents the following points of argument for our consideration:
POINT I: THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ASSERTING INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO OBJECT TO IMPROPER OPINION TESTIMONY BY OFFICER TROMMELEN.
B. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE IN AN ILLEGAL SEARCH OF DEFENDANT'S APARTMENT.
C. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT HIS TRIAL COUNSEL'S FAILURE TO CONTEST THE LABORATORY CERTIFICATE AND CHAIN OF CUSTODY EVIDENCE AT TRIAL.
D. THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BY THE CUMULATIVE EFFECT OF THE ERRORS AND OMISSIONS OF HIS TRIAL COUNSEL.
POINT II: THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT ESTABLISHED A PRIMA CASE OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III: THE PCR COURT SHOULD HAVE ORDERED AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
POINT IV: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF SUBMITTED FOR THE COURT.
We are unpersuaded.
We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 (2012).*fn1
First, Clyburn must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show 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. With respect to both factors of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).
Also, [t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694). [State v. Gaitan, 209 N.J. 339, 350 (2012).]
Clyburn argues that his trial counsel failed to object to improper opinion testimony by Detective Sergeant Trommelen during the State's case in chief. He contends that the witness was repeatedly permitted to testify to matters of opinion without being qualified as an expert witness. Specifically, the detective testified to his observations of Clyburn interacting with two other individuals in front of his apartment building, and then opined that he had witnessed "a hand-to-hand" narcotics transaction. The detective further explained the mechanics of such trafficking, noting that "[s]ometimes drug dealing can get kind of complicated when there's more than one person involved."
Clyburn argues that Detective Sergeant Trommelen was no longer testifying to what he had observed, but was "painting a picture to the jury characterizing [his] actions as those of a drug dealer, relying on opinion testimony supported by [the detective's] 'expertise' in distinguishing illegal narcotics activity from innocent interactions among people standing on the street."
N.J.R.E. 701 provides that a lay witness may offer opinion testimony if "it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Clyburn contends that Detective Sergeant Trommelen's testimony was not rationally based on his perception, but was based on his opinion and belief. Thus, the witness should have been limited to testifying as to his perceptions and observations, allowing the jury to draw from his testimony whatever conclusions were warranted based on the facts described.
With that in mind, Clyburn urges that a reasonably competent attorney adhering to an objective standard of performance would have objected to this evidence; and if the testimony had been excluded, there is a substantial likelihood that the result of the trial would have been different. We do not agree.
We recognize that Detective Sergeant Trommelen's testimony, at least in part, would today be viewed through the lens of State v. McLean, 205 N.J. 438, 448-49 (2011), which limits the use of opinion testimony by law enforcement officers in connection with CDS transactions that occur in a straightforward manner, which an average juror can readily understand. Id. at 452 (noting that a jury could understand, without expert testimony, that the exchange of currency for a small object constitutes the illegal sale of narcotics). Where factual testimony is sufficient to potentially enable the jury to draw the inference of distribution, further comment in the form of expert opinion is improper. Ibid.
On the other hand, the three-person exchange observed and commented upon was not sufficiently akin to the McLean one-toone transaction to make it professionally reasonable in 2004 for Clyburn's trial counsel to interpose an objection that only achieved crystallization with the advent of McLean in 2011. Cf. State v. Nesbitt, 185 N.J. 504, 514-16, (2006) (noting that in the context of a transaction in which a defendant did not personally hand over the drugs or accept payment, an expert may be utilized to explain to the jury how his actions fit into the scheme of a "street-level distribution network"). However, even if the failure to object was deficient performance, Clyburn still fails to satisfy Strickland's second prong.
Our review of the entire trial record satisfies us that the totality of the evidence -- even with the excision of Detective Sergeant Trommelen's opinions -- that was arrayed against Clyburn was powerful. Clyburn fails to satisfy the second prong of the Strickland test because he is unable to demonstrate "a reasonable probability that . . . the result of the [trial] would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. There is nothing here that undermines our confidence in the outcome of the trial. Ibid.
Clyburn next argues that defense counsel was ineffective because he failed to move to suppress evidence seized in the search of Clyburn's apartment at the time of his arrest. In particular, Clyburn asserts that his trial attorney should have objected to all of the evidence found in the apartment because the police lacked a warrant and his arrest did not provide authority for a warrantless search of the entire apartment.
Failure to file a meritorious motion to suppress evidence seized in an illegal search is an established basis for finding ineffective assistance of counsel. State v. Morrison, 215 N.J. Super. 540, 548 (App. Div.), certif. denied, 107 N.J. 642 (1987). In order to prevail on a claim for ineffective assistance of counsel based on the failure of counsel to file a motion to suppress, Clyburn must demonstrate that the suppression motion would have likely been successful. State v. Fisher, 156 N.J. 494, 501 (1998) (noting that when counsel fails to file a suppression motion, the defendant not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious).
A warrantless search is presumed invalid, and places the burden on the State to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). Here, Clyburn argues that he would have successfully suppressed evidence at trial because three exceptions to the warrant requirement do not apply. Specifically, he contends that the "hot pursuit," "search incident to a lawful arrest," and "protective sweep" warrant exceptions did not justify the search of his apartment. We disagree.
Immediately before Clyburn's apprehension, the police had reasonable belief that a crime had been committed and that the narcotics would be destroyed if emergent actions were not taken. After observing several alleged narcotics transactions and arresting a suspected buyer, the police returned to Clyburn's building in search of him and the other unidentified man. When they arrived, Clyburn spontaneously ran into the building, despite an officer's commands to stop, slamming and locking the door behind him. Under these circumstances, the police had reasonable belief that not only had a crime taken place, but that evidence would be destroyed if no immediate action were taken.
Likewise, once in Clyburn's apartment, the police had grounds to enter the bathroom since he was exiting the area and the toilet was running. Given the justifiable concern that evidence was in the process of being destroyed, the police had a defensible reason to enter the bathroom. Under these circumstances, the search of the bathroom without a warrant was an unremarkable application of the exigent circumstances exception to the warrant requirement.
"[P]hysical entry of the home is the chief evil against which . . . the Fourth Amendment is directed." State v. Hutchins, 116 N.J. 457, 463 (1989) (internal quotation marks omitted). "Historically, the Court has applied a more stringent standard of the Fourth Amendment to searches of a residential dwelling." State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Consequently, "searches and seizures inside a home without a warrant are presumptively unreasonable." Hutchins, supra, 116 N.J. at 462-63 (internal quotation marks omitted). They are "prohibited by the Fourth Amendment absent probable cause and exigent circumstances." Ibid. (internal quotation marks omitted).
Clyburn's hasty retreat to the apartment as the police approached allowed the officers' reasonable suspicion to grow into probable cause to believe that he had in fact engaged in a drug transaction and was in possession of contraband. See State v. Crawley, 187 N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). Exigent circumstances permitted the police to follow Clyburn in "hot pursuit" and to step past the threshold of the apartment and into the bathroom in an attempt to seize the evidence he likely discarded. See State v. Nikola, 359 N.J. Super. 573, 586 (App. Div.), certif. denied, 178 N.J. 30 (2003); see also State v. Nishina, 175 N.J. 502, 516-17 (2003) (discussing exigent circumstances).
Clyburn argues that even if exigent circumstances justified the initial entry into the apartment and the arrest of his person, the further warrantless search of his entire apartment cannot be validated pursuant to a search incident to his arrest. The search pursuant to lawful arrest exception holds that the scope of the search must be confined to the suspect's person and the area within his immediate control, and must be conducted at a time contemporaneous with arrest. State v. Sims, 75 N.J. 337 (1978). A search outside of the area within a defendant's immediate control, or after the defendant has been arrested and the dwelling is no longer in his control, are not justified without a search warrant. State v. Bruzzese, 94 N.J. 210 (1983).
Though defendant correctly paints the contours of the search pursuant to lawful arrest warrant exception, such argument is unpersuasive because of the applicability of the protective sweep and plain view warrant exceptions. A protective sweep is permitted if the searching officer has a reasonable suspicion that the area to be swept harbors a person who poses a danger. Maryland v. Buie, 494 U.S. 325, 334-36, 110 S.Ct. 1093, 1098-99, 108 L.Ed.2d 276, 286-87 (1990). Defendant contends that the police had no reason to believe that anyone else was present in the apartment and that their sole purpose was to find incriminating evidence. Given the inherently dangerous activity of drug trafficking and Clyburn's aggressive flight into the apartment, the police had reason to ensure that no one else was in the apartment and were thus entitled to enter the bathroom and seize the baggie.
The officers by that time were lawfully within the apartment. They were in an unfamiliar environment, and they had the right to make a quick protective sweep to make sure no one else was present. See State v. Davila, 203 N.J. 97, 115-16 (2010).
The plain view warrant exception is also applicable. This is triggered when the police are "lawfully in the viewing area" and while there, discover the evidence "inadvertently, meaning that [they] did not know in advance where evidence was located nor intend before to seize it," and they had "probable cause to associate the item with criminal activity." State v. Mann, 203 N.J. 328, 341 (2010) (citation omitted).
Once in the bathroom, the empty, clear, wet baggie was found on the floor, in plain view, and the toilet was running. Given the strong suspicion of drug dealing and destruction of evidence, the police had reason to seize this baggie under the plain view exception.
For these reasons, Clyburn has not demonstrated that he would have succeeded on a suppression motion at trial. Therefore, trial counsel's performance was not ineffective for failing to file a motion.
Clyburn contends that his right to effective assistance of counsel was violated because of defense counsel's overly accommodating attitude toward the prosecution, thus depriving him of a vigorous defense. Clyburn asserts that defense counsel did not require the State to produce a competent witness to prove its claims as to the nature and quality of the cocaine alleged to have been in his possession. To that end, defendant argues defense counsel failed to object to the State's use of the laboratory certificate for the cocaine testing, a potential violation of the Confrontation Clause. Likewise, Clyburn contends defense counsel failed to contest the evidence presented by the State to show that there was an intact chain of custody for the cocaine.
Even if there were theoretical reasons under Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed.2d 177, 194 (2004), and its progeny, to object to the laboratory certificate, defense counsel's decision to not demand a proper authenticating witness was a matter of trial strategy and does not illustrate ineffective assistance of counsel. Clyburn does not explain how providing a witness to verify the routine laboratory report would have been of any efficacy to his case. Likewise, since there is no assertion of error or any reason to doubt the accuracy of the laboratory report, even if a witness were produced, the laboratory report would likely have been presented to the jury in any event.
In like vein, Clyburn does not cite a specific reason why defense counsel should have challenged the State's chain of custody evidence or how such a challenge was required as a matter of reasonable professional representation. Since challenging the chain of custody evidence would unlikely be fruitful and result in only the unnecessary consumption of the trier of fact's time, this was again a reasonable trial strategy.
Having found none of Clyburn's arguments regarding trial counsel to be persuasive, we find no cumulative error. In the absence of error, much less cumulative error, there is nothing "sufficient to raise a reasonable doubt as to whether the error[s] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). As our Supreme Court has recognized, "the predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007). That circumstance does not exist on this record.
Clyburn next contends that he was denied the effective assistance of counsel because appellate counsel failed to raise issues on direct appeal that would likely have resulted in a different outcome. Specifically, he argues that appellate counsel should have raised the issue of cumulative error before the Appellate Division so that the entire weight of all errors and omissions of trial counsel could be considered in determining whether Clyburn's right to a fair trial was violated.
In affirming Clyburn's conviction, we considered each allegation separately, but never considered whether the cumulative effect of the errors identified was greater than their impact in isolation. Had we done so, we indubitably would have concluded that the cumulative error argument was as meritless as the five plain error arguments that we rejected pursuant to Rule 2:11-3(e)(2). Appellate counsel is not ineffective for failing to raise every issue imaginable, State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008), and was not ineffective here in light of the lack of merit of Clyburn's contentions.
Clyburn further contends that the PCR court should not have dismissed his petition without allowing an opportunity to provide further support for his claims at an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2013). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). So measured, we find that Clyburn has failed to establish a prima facie case to satisfy either the performance or prejudice prong of the Strickland/Fritz paradigm.
In Clyburn's pro se PCR brief, he argues that he was entitled to PCR for four reasons. First, his right to Due Process as guaranteed by the Fourteenth Amendment and the New Jersey Constitution was violated because the "trial court should have molded the jury verdict to conform to the evidence available at trial by the State in the form of discovery as the proof available did not substantiate the criminal charge of third-degree possession of crack cocaine." Building on this constitutional foundation, Clyburn next contends that the State did not meet its burden of proof as to every element which constitutes the offense of third degree possession of CDS and distribution of CDS contrary to N.J.S.A. 2C:1-13, N.J.S.A. 2C:1- 14(h). In essence, he argues that the guilty verdict was based on insufficient evidence to substantiate the elements of third-degree possession of crack cocaine. Third, Clyburn claims his sentence was illegal. Finally, he contends that he was deprived of the effective assistance of counsel, which we have already addressed.
We have reviewed each of Clyburn's pro se contentions and the applicable law, and we conclude that the arguments advanced are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).