Opinion
DOCKET NO. A-4452-13T1
06-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLY EMMANUEL a/k/a WILFREDO MANUEL, WILL EMMANUEL, WILLIAM BROWN, WILLIAM BROWN, JR., WILLIAM DIAZ, WILLIAM DIAZ, JR., WILLIAMS BROWN, WILLIE EMMANUEL, WILLY EMANUEL, WILLY EMMANUEL, JR., WILLY J. EMMANUEL and WILLY JAQUIM EMMANUEL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the briefs). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-12-0847. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the briefs). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a two-day jury trial, defendant Willy Emmanuel was found guilty on all five counts of an indictment charging him with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count three); third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count four); and second-degree distribution within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count five). The trial court sentenced defendant, who has a lengthy criminal record, to an extended custodial term of fourteen years with a seven-year parole disqualifier on count three, and a concurrent eight-year term with a four-year parole disqualifier on count five. All other counts merged.
On appeal, defendant principally argues that he is entitled to a new trial because there are docket entries indicating that the trial judge, a former assistant county prosecutor, may have briefly participated in some manner in an unrelated criminal case against him years earlier. Defendant further contends that he was unduly prejudiced by certain allegedly improper comments during the State's closing arguments. Lastly, he asserts that his sentence is excessive.
For the reasons that follow, we remand to the trial judge for a hearing on the disqualification issue to attempt to ascertain more definitively the nature of the judge's role in the prior case. On remand, defendant shall have the burden of proving that the judge, in her former capacity as an assistant prosecutor, had "direct involvement" in that earlier matter, thereby triggering the judge's duty to disqualify herself under the Judiciary's applicable Administrative Directive. If defendant fails to sustain that burden, his conviction and sentence shall remain intact. We also reject defendant's separate arguments claiming prosecutorial misconduct and an excessive sentence.
I.
We need not say much about the facts that gave rise to the present case. On the afternoon of July 25, 2012, two police officers who were conducting surveillance in Jefferson Park in Elizabeth observed a man, later identified as defendant, get out of a car and remove an item from its trunk. Defendant walked into the park and placed the item at the base of a tree. He was approached by two individuals, conversed with them briefly, and then returned to the tree, picking up what appeared to be a resealable plastic bag filled with smaller baggies. The officers then saw defendant walk back to the two individuals, and hand each of them one of the retrieved items. Both persons handed defendant money in exchange.
The police arrested defendant and the two apparent customers. The customers each had in their possession a small baggie containing cocaine. In addition, the police found seven other small bags of cocaine underneath some loose grass near the tree where defendant had stashed the larger plastic bag. The substances within the bags tested positive for cocaine, and defendant stipulated to the admission of the incriminating lab results.
At trial, the State presented testimony from one of the surveillance officers and an arresting officer, along with photographs taken of the crime scene. The State also called, without objection, an expert on narcotics packaging and distribution. Defendant did not testify, nor did he present any witnesses.
On appeal, defendant raises the following points in his brief and reply brief for our consideration:
POINT I
BECAUSE THE JUDGE HAD PROSECUTED EMMANUEL IN A PRIOR CRIMINAL CASE, SHE WAS MANDATORILY DISQUALIFIED FROM PRESIDING OVER HIS TRIAL,
REQUIRING REVERSAL OF HIS CONVICTIONS. (Not Raised Below).
POINT II
THE PROSECUTOR'S IMPROPER COMMENTS DURING SUMMATION DENIED EMMANUEL DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below).
POINT III
BECAUSE THE COURT FAILED TO FOLLOW THE SENTENCING PROCEDURES ARTICULATED IN STATE V. DUNBAR WHEN IMPOSING A SENTENCE IN THE EXTENDED TERM RANGE AND IMPOSING A PERIOD OF PAROLE INELIGIBILITY, A REMAND IS REQUIRED FOR RESENTENCING.
REPLY POINT I
THE STATE'S RESPONSE OVERLOOKS STATE V. TUCKER AND MISUNDERSTANDS THE RATIONALE BEHIND THE MANDATORY DISQUALIFICATION RULE.
II.
The main issue for our consideration is whether the trial judge should have disqualified herself from this matter because of her prior activities as an assistant prosecutor, a position in which she apparently supervised other assistants in the office. The issue arose, sua sponte, during a pretrial conference. Mindful of her former position, the judge requested that her secretary check the criminal docketing system (known as "Promis Gavel") to look for any prior criminal cases in Union County involving defendant in which the judge might have been involved as an assistant prosecutor.
The secretary located at least one entry in Promis Gavel that showed, assuming it is accurate, the judge had some unspecified prior involvement in a criminal prosecution against defendant in the early 2000s. The judge described this discovery in open court as follows, before the present trial commenced:
Pursuant to N.J.R.E. 201(b)(4), we have attempted to review and take judicial notice of the pertinent docket entries in Promis Gavel. The entries we have located contain two references to the judge in Case Number 2003387 (Union County Indictment No. 03-11-1187), in which she is listed on two dates as "Prosecutor." Specifically, those entries relate to what appears to be a post-conviction motion by defendant to be admitted to the Drug Court program. The first reference consists of a July 28, 2006 entry in which the motion was "carried," followed by an August 24, 2006 entry when that motion was again "carried," apparently on the previous day. It appears that the motion was eventually withdrawn. There are numerous other docket entries preceding and following these two entries, all of which list a different assistant prosecutor as appearing for the State. As we note, infra, we do not assume that our own review of Promis Gavel is complete or dispositive. We also are unsure how or why the judge's reference to "a case back in 2002" relates to these 2006 entries, except insofar as the indictment in that case was issued in 2002. --------
Also, one thing that I had mentioned to counsel in chambers, while I actually asked my secretary to look into another case, because having been at the Prosecutor's Office for a period of time, there have been some cases that have come up which I have a conflict in because I handled certain defendants' cases in the past. And while researching a case that really was not at all Mr. Emmanuel's case, my secretary printed out for me a part of the Promis Gavel . . . that indicates that I somehow had some connection to a case back in 2002
[sic] involving Mr. Emmanuel, and I advised counsel . . . [that] I don't have any recollection of this case at all . . . . And most likely, because I was trial supervisor, I may have stood in for an arraignment. It could have been a pre-trial on behalf of one of the trial team assistant prosecutors.
[(Emphasis added).]
Defendant stated under oath that he likewise had no recollection of the judge being involved, in her former position as a prosecutor, in any prior matter concerning him. His trial counsel indicated on the record that defendant understood he "ha[d] a right to object," but that he had chosen to make what was termed "a full waiver" of the potential conflict of interest. Ibid. The trial then proceeded without the disqualification issue being mentioned again.
In now revisiting this subject on appeal, defendant argues that the judge was disqualified as a matter of law from presiding over his trial because of her prior position as an assistant prosecutor in a case against him. He further contends that the conflict is non-waivable. He maintains that his personal acquiescence in the judge's participation before the trial started does not ameliorate the need to assure, in the public interest, that judges should not sit on cases in which their impartiality might be reasonably questioned.
The State responds that there were insufficient grounds to require the judge's disqualification here. Moreover, the State asserts that defendant should not be allowed to revive this subject on appeal, having acceded to the judge's involvement and having failed to insist when the issue was raised on a more in-depth inquiry into her actual role in the prior prosecution.
Several well-established principles guide the disqualification analysis. As stated in Canon 3(C)(1) of the Code of Judicial Conduct, "[a] judge should disqualify . . . herself in a proceeding in which the judge's impartiality might reasonably be questioned[.]" The rules of judicial disqualification are important for "maintain[ing] public confidence in the integrity of the judicial process, which in turn depends on a belief in the impartiality of judicial decision making." State v. Kettles, 345 N.J. Super. 466, 469-70 (App. Div. 2001) (quoting United States v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982)), certif. denied, 171 N.J. 443 (2002).
We are mindful there are certain circumstances that require a judge to recuse herself, regardless of whether any true conflict of interest or impropriety exists. Our court rules specify that a judge must disqualify herself on the court's own motion if she "has been [an] attorney of record or counsel in the action[.]" R. 1:12-1(c) (emphasis added). Similarly, by statute, a judge must recuse herself upon motion by one of the parties if she "[h]as been [an] attorney of record or counsel for a party" in the case in past matters. N.J.S.A. 2A:15-49(b).
This court has clarified a judge's obligation to disqualify herself in various factual scenarios. In criminal trials, a judge must recuse herself on her own motion if she was sufficiently personally involved in the prosecution of the same defendant in a past matter. See State v. Presley, 436 N.J. Super. 440, 448 (App. Div. 2014) (agreeing with the trial judge that he had a "conflict that required his disqualification" because the judge had previously prosecuted the same individual over seven years ago in an unrelated matter); State v. Tucker, 264 N.J. Super. 549, 554-55 (App. Div. 1993) (reversing a conviction because of the judge's failure to disqualify herself, noting that a trial judge "not only has the right but . . . the obligation to recuse himself on his own motion" after the trial judge in the case denied a motion for recusal because the judge was personally involved in two prior unrelated grand jury proceedings against the defendant), certif. denied, 135 N.J. 468 (1994).
The judge's inability to recall the defendant or the prior prosecution is not dispositive to this analysis. Tucker, supra, 264 N.J. Super. at 553, 555 (reversing conviction despite the trial judge stating he did not remember defendant or the prior cases he was involved in as a prosecutor five years ago). Nor does it matter that the defendant "waived" any objection to the judge's continued involvement at trial. Kettles, supra, 345 N.J. Super. at 468, 469-71 (reversing a conviction and remanding for a new trial despite waiver by the defendant because the trial judge had been personally involved in an unrelated grand jury proceeding against the same defendant as a prosecutor).
A judge's obligation to recuse herself when the circumstances dictate such action was further amplified in the civil context in Rivers v. Cox-Rivers, 346 N.J. Super. 418, 421-22 (App. Div. 2002), certif. denied, 186 N.J. 363 (2006). In that case, this court applied what we termed a "non-waivable" and "bright-line rule" that requires judges to disqualify themselves "where [the judge] has previously represented one of the parties in a matter before him against the other[.]" Id. at 421. The panel reasoned that the "public policy imperatives" underpinning the principles espoused in cases such as Kettles and Tucker applied equally in the civil context. Id. at 421-22. Rivers involved a divorce action in which the trial judge had represented the plaintiff as a lawyer fourteen years earlier in a marital separation dispute. Id. at 420.
That said, a judge's merely titular or tangential role as an attorney in a prior prosecution involving the same defendant does not trigger an automatic duty to disqualify. Rather, the applicable test is whether the judge had "direct involvement" in the earlier prosecution, a standard that is set forth in the following Directive of the Administrative Office of the Courts:
The Supreme Court has established the following guidelines concerning judicial disqualification in criminal cases, where the judge previously served as prosecutor, public defender, or as an assistant in one of those offices:
1. Except in extraordinary circumstances, a judge should disqualify himself or herself in a criminal matter which was pending in his or her office when he or she was the prosecutor or county public defender, whether or not he or she actively participated in the investigation, prosecution, or defense of the case, or had actual knowledge of it.
The reason for this is that as the prior head of either office, the judge would have had the overall responsibility for the conduct of the case.
2. A judge should disqualify himself or herself from hearing a criminal matter involving a defendant who the judge, in his or her previous capacity, had personally prosecuted or defended, or had represented in a civil matter in the past.
The reason for this is that the appearance of judicial impartiality must be preserved.
3. A judge need not disqualify himself or herself from hearing a criminal matter which was pending at the time when the judge served as an assistant prosecutor or assistant public defender, if the judge had no direct involvement with the matter.
As an assistant, the judge would not have been charged with the overall responsibility for the conduct of the case; disqualification is therefore unnecessary absent direct
involvement in the investigation, review or trial of the matter in question.
[Disqualification of Judges in Criminal Matters, Administrative Directive (Sept. 19, 1983) (emphasis added).]
The Supreme Court applied this Directive in State v. Harris, 181 N.J. 391, 510-11 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005), and concluded that a trial judge presiding over a defendant's petition for post-conviction relief ("PCR") was not required to recuse himself merely because his signature appeared on an indictment of defendant while the judge had served as the Acting County Prosecutor. There were initials after the signature, suggesting that another person in the prosecutor's office had actually signed the document on the Acting Prosecutor's behalf. Moreover, the judge had no personal recollection of the case, which had been prosecuted over twenty-five years earlier. In those circumstances the Supreme Court found "no reasonable basis for defendant, counsel, or the public to question the [judge's] impartiality[.]" Id. at 511.
Here, the record is incomplete and unenlightening concerning why the judge's name appears in at least two docket entries for one of defendant's prior indictments. In both of those 2006 docket entries, it appears that the court made no substantive rulings on those dates, and that defendant's post-trial motion to be admitted into Drug Court was simply postponed to a later date. In fact, the records suggest that the motion was eventually withdrawn. It is entirely conceivable that the then-assistant prosecutor (now the judge) had no role of consequence in the case on those two particular days.
This may well be a situation in which the assistant prosecutor's name was inserted into the docket entry by staff provisionally or for tracking purposes, until a responsible attorney within the office to address the motion was identified. That supposition is consistent with the fact that defendant had already pled guilty and been sentenced in that case in 2004, and his file was presumably closed until his 2006 motion. Conversely, it is also possible that the assistant prosecutor had more significant involvement, such as authoring a brief on the motion, before it was ultimately withdrawn. In addition, as we have already mentioned, there may be other pertinent docket entries in this or other cases involving defendant that have yet to be clarified or uncovered.
We agree with defendant that the controlling legal authority renders a conflict or appearance of impropriety - if one exists at all - non-waivable. See Rivers, supra, 346 N.J. Super. at 421-22. Even so, we recognize that defendant did not press the issue after the judge had conscientiously brought the subject to everyone's attention before the trial started.
Given this chronology, we conclude that the disqualification issue should be remanded for further inquiry and a hearing, in an effort to explore more deeply and definitively the judge's actual role in defendant's prior prosecution(s), with a specific focus on whether the judge had any "direct involvement" in any of those cases within the meaning of the Directive. In light of defendant's failure to assert disqualification until now, we conclude it most appropriate for him to bear the burden of persuasion on remand on the question of whether the judge had a disqualifying "direct involvement" in his prior criminal case or cases. If the evidence of such involvement is unobtainable or inconclusive, or the proofs on the subject are in equipoise, then defendant has failed to meet his burden and his conviction and sentence shall not be set aside on this basis. See, e.g., State v. Morton, 155 N.J. 383, 421 (1998) (by analogy, imposing upon a criminal appellant the burden of establishing "plain error" on an issue he initially failed to raise below), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
Consistent with general principles, the trial judge herself shall preside over the remand proceeding and determine if any further information uncovered of her prior potential involvement compels disqualification. Generally, "[t]he disqualification decision is initially left to the discretion of the trial court." State v. Marshall, 148 N.J. 89, 275-76 (1997), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "The trial judge is in as good a position as any to evaluate a claim that an action has the appearance of impropriety." Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996).
Because defense counsel and other assistant prosecutors are identified in some of the related Promis Gavel docket entries, the extent of the judge's prior involvement might be readily revealed through correspondence or informal discussion. In any event, we remand this issue to the trial court for further examination. In the meantime, defendant's conviction and sentence shall remain unaltered. In taking this necessary step, we do note that, by all indications, the trial judge presided over the case well and fairly.
III.
We discern no merit to the remainder of defendant's arguments. R. 2:11-3(e)(2). His contention that the prosecutor made four improper comments during summation - only one of which was objected to at the time - is rejected, as the comments appear to us to be within the bounds of fair, robust advocacy. The comments did not deprive defendant of a fair trial. We are unpersuaded that the three unobjected-to remarks were "clearly and unmistakenly improper" or that they "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his . . . defense." State v. Ingram, 196 N.J. 23, 43 (2008).
The fourth comment, which did draw a timely objection, did not unduly infringe upon defendant's privilege against self-incrimination. In any event, the problem was sufficiently dealt with by the court through a prompt curative instruction, which we presume the jury heeded. State v. Burns, 192 N.J. 312, 335 (2007). We have considerable doubts that the jurors were led astray in this case by the prosecutor's summation, particularly given the strength of the State's proofs establishing that defendant was caught by two police officers, in essence, "red-handed," in the commission of acts of cocaine distribution.
Lastly, we have no difficulty upholding defendant's extended-term sentence and all of its facets. Defendant had a serious record of five prior adult convictions, including multiple drug crimes and unlawful possession of a handgun. We are unpersuaded that his past convictions were impermissibly "double-counted" at sentencing in violation of State v. Dunbar, 108 N.J. 80, 91-92 (1987), for purposes of the court's extended-term analysis. Nor did the judge manifestly misidentify or unfairly weigh the pertinent aggravating and mitigating factors. State v. Case, 220 N.J. 49, 65 (2014). We will not second-guess the trial court's exercise of its wide discretion in this sentencing context. State v. Bieniek, 200 N.J. 601, 612 (2010).
Affirmed in part and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION