Opinion
DOCKET NO. A-4790-13T4
02-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCELLUS BARNES, Defendant-Appellant.
Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. McLane, of counsel and on the briefs). Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-12-2067. Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. McLane, of counsel and on the briefs). Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his convictions for third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b), and presents the following arguments for our consideration:
POINT I
THE TRIAL COURT IMPROPERLY EXCLUDED RELEVANT EVIDENCE THAT DEFENDANT'S ROOMMATE ADMITTED OWNING ALL THE DRUGS FOUND IN THE SHARED APARTMENT DURING AN EARLIER POLICE SEARCH, WHICH VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE.
POINT II
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO COUNSEL WHEN THE JUDGE ARBITRARILY DENIED HIS REQUEST FOR A CONTINUANCE TO RETAIN PRIVATE COUNSEL.
In a supplemental pro se brief, defendant argues:
POINT I
THE TRIAL COURT ERRED IN ALLOWING AN ARREST TO BE USED AS A SEARCH WARRANT.
POINT II
THE TRIAL COURT ERRED IN ACKNOWLEDGING THE ARREST WARRANT WAS NOT [SIC] OATH BY A NEUTRAL AND DETACHED PERSON EMPOWERED BY LAW TO TAKE COMPLAINTS.
After reviewing these arguments in light of the record and applicable legal principles, we are unpersuaded by defendant's challenges to the evidentiary ruling and denial of his adjournment request and find the arguments raised by defendant in his pro se brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
I.
Three witnesses testified at trial about the recovery of drugs at defendant's apartment when officers arrived to execute an arrest warrant for him on August 15, 2012.
Officer Lorenzo Pettway went to defendant's apartment with other members of the Asbury Park Police Department to arrest defendant. Pettway testified that when they arrived, he saw a person he knew as Chazz Edgerton walking toward the door of defendant's apartment. Edgerton looked at Pettway, ran toward the door and starting fumbling with keys. Pettway ran to Edgerton, took the keys and instructed him not to say anything. He heard a male voice, later identified as defendant, call from inside the apartment, "Who's there?" Edgerton yelled back, "The boys are here." Pettway ordered Edgerton to keep it down but Edgerton replied, "I don't have to -- I can say what I want."
Pettway ordered defendant, "Open the door, it's the police." Defendant replied, "Hold on a second." Pettway then heard defendant engage the deadbolt on the door and run up the hardwood stairs to the second floor apartment. Pettway used Edgerton's keys to open the door and ran up the stairs. He observed defendant walking out of a bathroom. He told defendant they had a warrant for his arrest. Defendant replied he did not know the officers were there.
Pettway testified that he used Edgerton's key at the suppression hearing conducted before trial.
Pettway went into the bathroom defendant had left and observed a plastic bag containing a rock-like substance at the bottom of the toilet bowl. He photographed the item, collected it and confronted defendant, stating, "You didn't flush it." Defendant replied, "You got that, Pett, that's mine."
Pettway testified that he and defendant knew each other from past encounters and that defendant called him "Pett."
Pettway testified that he read defendant his Miranda warnings and asked for consent to search the apartment. Defendant gave his consent, initialing both the Miranda warnings card and the consent to search form. Pettway stated defendant cooperated in the search, showing him a digital scale that had been hidden in the oven. The officers also recovered a bag of cocaine and a hand-rolled marijuana cigarette in a living room closet, a bag of marijuana in the bedroom and two cell phones.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant asked Pettway not to arrest Kendra Smith, who was present in the apartment. He stated, "everything in the apartment was his," that Smith "had nothing to do with it" and was "just there visiting." The officers arrested defendant, Smith and Edgerton, who was charged with obstruction for yelling to defendant about the police presence.
Smith's account differed from Pettway's. Smith saw Edgerton outside the apartment but said "[h]e just sat down on the porch" when the police approached and that the officers went through his pockets before knocking on the door. She did not notice if defendant went into the bathroom or if he ran down the stairs and back. Smith stated defendant was immediately handcuffed by the officers and did not sign the consent to search form until after the officers searched the apartment.
The defense also called Edgerton, who testified he knew defendant "for a long time", visited him on and off during the summertime, and was visiting him on August 15. Edgerton left the apartment for part of the day. When he returned, the police approached him and stated they were there to serve a search warrant for defendant. Edgerton, who had been arrested at the apartment nine days earlier, defiantly told the police he was "not going to do anything for [them]" and an altercation followed. Edgerton testified he did not know there were drugs in the apartment and the drugs that were recovered did not belong to him.
II.
At trial, defense counsel sought to question Pettway about statements made by Edgerton when a search warrant was executed at defendant's apartment on August 6, which counsel characterized as "Edgerton claim[ing] responsibility for the drugs that day." He argued that because similar substances were found on August 15, it was a "logical inference that [Edgerton] was the possessor of the drugs on August 15 as well." The State objected.
A.
The facts regarding this admission are derived from the testimony at the suppression hearing.
A search warrant was obtained following controlled buys from defendant at his apartment. When the warrant was executed on August 6, 2012, Edgerton and another person, G.P., were present; defendant was not. Pettway was questioned about statements made by Edgerton at that time. Pettway's testimony about the statements was somewhat inconsistent. When questioned by the defense, he stated Edgerton claimed responsibility for the drugs found. In response to a question by the prosecutor, he stated he "[did not] remember specifically what was said." His report stated, "Mr. Edgerton made several unsolicited statement [sic] saying that the items found in the apartment [sic] and none of it belonged to [G.P.]"
Because G.P. was not arrested, he is identified by initials. --------
The trial judge sustained the State's objection, stating in part that while Edgerton did exculpate G.P., there was nothing in the police report or in Pettway's testimony that indicated Edgerton "was exonerating" defendant.
B.
Admissibility of evidence of third-party guilt is governed by N.J.R.E. 401. State v. Weaver 219 N.J. 131, 157 (2014). Although the scope of evidence under this rule is more expansive than the "other crimes evidence" subject to N.J.R.E. 404(b), the criteria for relevance when such evidence is offered is tailored to the ability such evidence has to exculpate the defendant.
A defendant may use other-crimes evidence in support of his defense "if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him."
[Weaver, supra, 219 N.J. at 157 (emphasis added) (quoting State v. Garfole, 76 N.J. 445, 453 (1978)).]
Our Supreme Court instructed: "[T]he question . . . is not relevance as such, but the degree of relevance balanced against the counter considerations expressed in [N. J.R.E. 403] of undue consumption of time, confusion of the issues and the misleading of the jury." Garfole, supra, 76 N.J. at 451. See also State v. Cook, 179 N.J. 533, 566-67 (2004). Like other evidentiary rulings, a trial court's decision on the admissibility of defensive other-crimes evidence is entitled to great deference. State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008). Our courts have repeatedly described the determination as "highly discretionary." See Weaver, supra, 219 N.J. at 151; Cook, supra, 179 N.J. at 567; B.M., supra, 397 N.J. Super. at 374.
The instant charge alleged defendant possessed a third-degree quantity of cocaine on August 15, 2012. Defendant argues evidence that Edgerton possessed drugs at the same location approximately one week earlier would tend to show that the drugs recovered on August 15 were also Edgerton's. He further contends that the permissible inference is that Edgerton had sole possession of the drugs and did not share possession with defendant.
The State argues that this contention falls short of establishing relevance because the inference to be drawn would not tend to "negate [defendant's] guilt of the crime charged against him." At best, evidence that Edgerton possessed drugs at that location on an earlier date could only support an inference that he and defendant jointly possessed the drugs on August 15; it would not tend to absolve defendant of all responsibility for possession on August 15.
We agree with the State's analysis of the relevance of the proffered evidence. The crucial fact here is the charge against defendant — the possession of drugs. It was not necessary for the State to prove beyond a reasonable doubt that defendant had sole possession of the drugs. Therefore, if the inference were drawn, the evidence would not negate defendant's guilt; it would merely permit a conviction based upon joint possession.
Even if the evidence could meet the "simple relevancy test," that alone does not compel its admission.
[A] court must still consider whether "its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of confusing the issues or of misleading the jury."
[Cook, supra, 179 N.J. at 567 (quoting Garfole, supra, 76 N.J. at 455-56).]
Defendant argues that neither of these factors apply here to warrant the exclusion of Edgerton's admission. The State argues that, if the evidence were permitted, it should be able to present evidence that the drugs recovered from defendant's apartment on August 6 were seized during the execution of a search warrant for his apartment and that he was also charged with possession of those drugs. The State contends that the jury would then be presented with evidence relating to two separate instances of drug possession and questions of sole and joint possession not germane to the charge against defendant.
We note that the trial judge permitted defendant to call Edgerton as a witness, presumably to admit he had sole ownership of the drugs seized on August 15. However, when he took the stand, Edgerton denied knowing there were drugs in the apartment on August 15. This testimony plainly undermined any potential benefit defendant sought to gain from suggesting that Edgerton was solely responsible for the possession of drugs on August 15 based upon his August 6 admission.
We are satisfied from our review of the record that the introduction of admissions attributed to Edgerton on August 6 would have created a substantial danger of confusing the issues that is not warranted given the non-existent or minimal relevance of that equivocal "admission." The trial judge did not abuse his discretion in denying defendant's request.
III.
Finally, defendant argues he was denied his right to counsel when the trial court denied his request for a thirty-day continuance to retain private counsel. Although this was defendant's first request for an adjournment, it was made the day before trial was scheduled to begin, which coincided with the day he was to be released from prison. Defense counsel presented the following reasons to the court for the request:
The situation is that he is to be released tomorrow which will enable him to hire private counsel. He has had private counsel, Mr. Kenny in the past. And Mr. Kenny stopped in here before and inquired as to the status of the case. Mr. Kenny indicated to me that he would need 30 days.
Mr. Barnes' and my relationship has deteriorated over time and he has not previously requested an adjournment in this case.
The State opposed the request, arguing defendant had five months after the plea cut-off date to retain new counsel and did not call Mr. Kenny until one week prior to the trial date to advise that he wanted to hire him. The State contended defendant's delay in seeking alternate counsel contributed to the circumstances that gave rise to the adjournment request.
Defendant acknowledges the trial judge applied the factors enumerated in State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985), but contends the judge's application of those factors to deny the adjournment request constituted an abuse of discretion.
The balancing of factors relevant to this determination "is an intensely fact-sensitive inquiry." State v. Hayes, 205 N.J. 522, 538 (2011). Those factors include:
the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.
[Furguson, supra, 198 N.J. Super. at 402 (citation omitted).]
In assessing the adjournment request, the trial judge noted the plea cut-off date had passed and the trial date was set as a firm trial date. The attorney defendant wanted to hire needed thirty days before he would be ready to try the case. There could be a significant delay in the trial if adjourned because a witness was going out on maternity leave and would be unavailable for several months. The judge observed that even while incarcerated, defendant had the opportunity to reach out for new counsel and had failed to do so. The judge reasoned further that the charges did not reflect a very complex case. After weighing these factors, the judge denied defendant's request.
"Trial judges retain considerable latitude in balancing the appropriate factors." State v. Kates, 216 N.J. 393, 397 (2014). The Court has "underscore[d] that only if a trial court summarily denies an adjournment to retain private counsel without considering the relevant factors, or abuses its discretion in the way it analyzes those factors, can a deprivation of the right to choice of counsel be found." Ibid.
The trial judge here did not summarily deny defendant's request. He advised counsel to review Furguson, supra, 198 N.J. Super. at 402, to assist in the presentation and analysis of the request and applied a thoughtful analysis of the relevant factors. We discern no abuse of discretion in his analysis or decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION