Opinion
DOCKET NO. A-1525-10T1
03-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUCMANE DAZILME, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-02-0298.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Lucmane Dazilme appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted following a jury trial of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 500 feet of a park, N.J.S.A. 2C:35-7.1, and fourth-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2). At sentencing, the trial judge merged the fourth-degree offense into the third-degree offense and imposed a sentence of four years incarceration, together with appropriate fines, penalties and a six-month suspension of driving privileges.
We recount the relevant facts of these crimes as stated in our opinion, State v. Dazilme, No. A-5144-04 (App. Div. June 29, 2007) (slip op. at 2-4), affirming defendant's convictions.
Defendant's petition for certification was subsequently denied by the Supreme Court. State v. Dazilme, 193 N.J. 221 (2007).
In the late evening of November 13, 2001, Elizabeth police officers Timothy Geddes and John Mayer were positioned in a surveillance location in a high narcotics trafficking area. Using binoculars, the officers observed defendant sitting on a slide in Jefferson Park, where he was talking to Masterson Cadestin. Mayer testified that he observed a white male approach defendant with his fist closed. Defendant accepted an object from this third-party, then reached down to the ground, picked-up something and passed that object to the third-party. The third-party took the object and left the park. Defendant and Cadestin then left the park, heading in a different direction.
The officers, believing the interaction between defendant and the third-party was a hand-to-hand drug sale, left the surveillance location, entered their car and drove down Madison Avenue toward defendant. From their car, the police watched defendant and Cadestin walk through the park and turn onto the street. When the car was within ten feet of defendant, each officer stated that he saw defendant drop items on the ground, duck behind a parked car, and begin to crawl down the street in an apparent effort to avoid detection. Mayer stopped defendant while Geddes arrested Cadestin. Once Cadestin was secured in the police vehicle, Geddes retrieved the items defendant had dropped, which were later determined to be eleven green Ziplock bags containing marijuana. Defendant was placed under arrest. The search incident to arrest recovered two additional green Ziplock bags of marijuana, and $440 in cash.
At trial, the State presented the expert testimony of Lieutenant Guy M. Steward of the Union County Prosecutor's Office, who was qualified as an expert in the methods of distribution, packaging, and transport of street-level narcotics. Lt. Steward offered his opinion, in response to a series of hypothetical questions based on facts similar to those of the instant case, that the bags of marijuana were possessed with intent to distribute.
Defendant testified, refuting the facts as expressed by the police. Also, Cadestin appeared as a defense witness. Specifically, defendant and Cadestin denied they were approached by a white male while they talked in the park. Defendant stated he was not selling drugs and had done nothing wrong when the police arrested him. He asserted the police placed something in his pocket, which he later learned was marijuana.
On June 16, 2003, the jury returned a guilty verdict on both counts of the indictment. . . .
Defendant filed a timely PCR petition in which he alleged ineffective assistance of counsel based on his trial counsel's failure to: (1) object to an amendment of the indictment on the first day of trial changing the date of the crime charged from November 13, 2001 to "on or about" November 13, 2001; and (2) object to "prejudicial comments" by the State during summation. Defendant also asserted that the trial court erred in permitting the State to introduce expert testimony "on the issue of intent to distribute narcotics" and that appellate counsel was ineffective for failing to raise on direct appeal the issues noted above.
Following argument, the trial judge denied defendant's petition. Explaining that "[a] date in an indictment may be changed by amendment when defendant is not prejudiced and time is not of the essence[,]" the trial judge stated, "[h]ere, defendant was not prejudiced nor is any prejudice even articulated in the PCR. The amendment did not change the scope or nature of the trial or defense. The amendment was a technical change that had no impact on the trial."
With respect to the claim that the State's summation was unfair and prejudicial, the judge's written opinion stated:
At trial, the defendant and Masterson Cadestin testified on behalf of the defendant. These witnesses' testimony directly contradicted the testimony of the police officers. The defense was clear and direct - the police were lying, they fabricated a story to frame the defendant and they planted drugs on the defendant. The defense points to the following comments by the prosecutor as prejudicial error:Defendant appeals from the March 31, 2010 order denying his PCR petition and request for an evidentiary hearing.
Ladies and gentlemen, good afternoon. The defense has two theories here in this matter; one, that the officers are just horrible, despicable human beings who simply decided to take the stand and lie to you, that they made up certain things, just made them up out of thin air. Made up an individual came into the park. And I don't know if you can make up an individual. Then they make up how the drugs were discovered. They plant the drugs. That's two theories - they're so utterly horrible and despicable that they'll make up human beings and they're so utterly horrible and despicable that they'll plant drugs.The defense argues that these comments in general, and in particular use of the terms "theories", "horrible", and "despicable" were designed to denigrate the defense and impassion the jury. In light of the defense that the officers fabricated a story and planted drugs on the defendant to frame him, I do not find that these statements are outside the range of what is acceptable in a summation. See State v. Frost, 158 N.J. 76, 82 (1999) ("Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the
evidence presented"; "[i]ndeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries."); State v. Daniels, 182 N.J. 80, 96 (2004) (holding that not every improper prosecutorial statement will warrant a new trial, but, rather, a reviewing court may reverse only if the prosecutor's comments were so egregious that they deprived the defendant of a fair trial).
In his summation, the prosecutor made the following comment:
You know, it's fascinating - this defendant with a criminal record, a convict, and his friends who have been arrested by these same officers, so as to say that there's no bias here is - in and of itself incredible.The defense argues that use of the term "convict" demeans and belittles the defendant and "could have been associated with a habitual law breaker, thereby inviting the jurors to improperly speculate on the extent of defendant's prior record. It is the defendant's position that this denied him a fair trial. The defendant testified at the trial and the jury heard testimony that the defendant had a prior conviction - a third degree offense in 1997, where defendant received 3 years probation.
In State v. R.B., 183 N.J. 308, 330 (2005), the Court held that an [appellate] court's standard of review regarding issues of prosecutorial misconduct dictates that any error or omission "shall be disregard by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." (quoting R. 2:10-2). According to the Court, "the harmless error standard thus requires that there be some degree of possibility that the
error led to an unjust result." Id. "The possibility must be real, one sufficient to raise a reasonable doubt as to whether it led the jury to a verdict it otherwise might not have reached." Id. Here, in the context of the prosecutor's statement, "convict", is clearly a reference to the defendant's criminal record testified to by the defendant at trial. Therefore, use of the term "convict" in this context was, at most, harmless error. See also State v. Hamilton, 193 N.J. 255, 256 (2008) (holding that N.J.R.E. 609 allows "a witness prior convictions to be admitted for impeachment purposes despite the obvious prejudice that flows from such evidence, particularly for a criminal defendant.").
On appeal, defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER HIS TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONFICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE'S APPLICATION TO AMEND THE
INDICTMENT ON THE FIRST DAY OF TRIAL.
D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO PREJUDICIAL COMMENTS MADE BY THE STATE IN SUMMATION.
E. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
F. CUMULATIVE ERROR.
We find no merit to these contentions, Rule 2:11-(e)(2), and therefore affirm substantially for the reasons stated by Judge Peim in his thorough written decision of March 31, 2010. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION