Opinion
DOCKET NO. A-5694-13T4
03-16-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRANCE D. HARRIS, a/k/a SHAKEEL DAWUD, DAVID HARRIS, and TERRIN HARRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Lila Leonard, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges O'Connor and Whipple. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-01-0228. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Lila Leonard, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Following our remand, defendant Terrance D. Harris appeals from the May 27, 2014 Law Division order again denying his motion to suppress evidence of illicit drugs found in his home during the execution of a search warrant. For the reasons that follow, we affirm.
I
The evidence adduced during the suppression hearing is set forth in our opinion remanding this matter to the trial court, State v. Harris, A-4000-11 (App. Div. Mar. 21, 2014), but to put the issues on appeal in context, a brief summary of the evidence is required.
It is not disputed the police searched defendant's home the morning of November 4, 2010. The State maintained the search was conducted after the police obtained a search warrant. Defendant asserted the search occurred before the State secured a search warrant, pointing out the judge who signed the search warrant hand-wrote on the warrant that he signed it on November 4, 2010, at 3:30 p.m. Thus, because the search warrant seemingly showed the search warrant was acquired after the search, defendant argued the State violated his Fourth Amendment rights to be free from warrantless searches of his home, see State v. Johnson, 193 N.J. 528, 553-54 (2008), warranting suppression of the seized evidence.
See U.S. Const. amend. IV.
At the conclusion of the suppression hearing, the trial court found the State obtained the search warrant at 3:30 p.m. on November 3, 2010, the day before the search. The court concluded the judge who signed the search warrant made a "scrivener's error" when he dated the warrant November 4, 2010, and had in fact signed it on November 3, 2010. The evidence in support of the court's finding was as follows.
Steven Hadley, a detective in the Egg Harbor City Police Department, testified he acquired a search warrant to search defendant's home, but could not remember the date he went to the courthouse to obtain a signed warrant from the judge. However, Hadley was presented with a copy of a log sheet showing the signatures of those members of law enforcement who entered the courthouse complex on November 3, 2010. He testified his signature appears on that log sheet, as does his hand-written notation stating the name of the judge he intended to see; the judge is the same one who ultimately signed the subject search warrant. The log sheet shows Hadley signed the log sheet at 3:30 p.m.
It is not disputed members of law enforcement who are carrying a weapon must sign a log sheet before entering the courthouse complex. The purpose is to enable courthouse personnel to keep track of who has a weapon in the courthouse, and ensure those who enter the courthouse with a weapon leave with that weapon.
Hadley noted he has signed a log sheet every time he has entered the court complex; his name does not appear on the November 4, 2010 sheet. He also testified he has never executed a search warrant without first obtaining a search warrant. Hadley mentioned his signature also appears on the affidavit of probable cause. We note the judge who signed the search warrant notarized Hadley's signature on the affidavit.
In response to questioning by defense counsel, Hadley again acknowledged he had no independent recollection of what occurred on November 3, 2010. Hadley merely reconstructed from the documents he reviewed that he had obtained a search warrant on November 3, 2010, from the judge who signed the warrant.
An assistant prosecutor testified Hadley sent him an email on November 1, 2010, attached to which was a draft of a form of search warrant for the assistant prosecutor's review and approval. Thereafter, the assistant prosecutor telephoned Hadley, authorized him to apply for the search warrant, and advised he approved of the form of search warrant, which the assistant prosecutor emailed back to Hadley on November 3, 2010, at 10:55 a.m.
The trial court determined the documents about which Hadley testified provided strong circumstantial evidence the search warrant was signed on November 3, 2010, and "dovetailed with the . . . testimony of [the assistant prosecutor] and Hadley, who appeared credible with no ax to grind against anybody." Because the search warrant was signed before the search, the court found there was no basis to grant defendant's motion to suppress.
After his motion to suppress evidence was denied, defendant pled guilty to second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2). He was sentenced to an eight-year term of imprisonment with a four-year period of parole ineligibility.
Defendant filed a direct appeal. In our opinion, we affirmed the trial court's factual findings. See Harris, supra, (slip op. at 4). Therefore, it is an established fact the search warrant was issued on November 3, 2010, before the search of defendant's home was executed the following morning.
However, during the course of delivering its oral opinion, the trial court stated, "there's a presumption of validity in these warrants." Citing State v. Robinson, 200 N.J. 1, 7-8 (2009), we noted in our opinion a search warrant cannot be presumed valid until the State first establishes the search warrant was issued in accordance with the Rules of Court. Harris, supra, (slip op. at 3); see Robinson, supra, 200 N.J. at 7-8. However, once that has been accomplished, the "burden of demonstrating the invalidity of such a search is placed upon the defendant. The defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." Robinson, supra, 200 N.J. at 7-8. Concerned the trial court may have presumed the search warrant was valid before the warrant was properly issued and that such presumption may have influenced the court's assessment of the evidence, we remanded the matter to the trial court for its reconsideration. See Harris, supra, (slip op. at 4).
In addition, we granted defendant's motion to supplement the appellate record with new information he believed relevant on the issue of Hadley's credibility, but we did not consider this information in deciding the appeal. Ibid. We left the question whether to supplement the record to the trial court's discretion on remand. Ibid.
On remand, the trial court clarified it knew at the time it denied defendant's suppression motion that there was no presumption the search warrant was valid before the State established the warrant had been issued in accordance with the Rules of Court. The trial court explained that when it stated "there is a presumption of validity in these warrants," it was referring to warrants that had been issued in accordance with the law.
The trial court further noted because the subject search warrant had been signed by a judge before the search, the warrant was valid; the fact the judge affixed the wrong date to the warrant did not affect its legitimacy because there was sufficient proof the warrant was signed before the search. The trial court commented it was aware that once the warrant was determined to be valid, the burden of proof shifted to defendant to show the search was not, which defendant failed to demonstrate. For that reason, the trial court denied defendant's motion at the conclusion of the suppression hearing and, on remand, found no basis to change that decision and again denied his motion.
The trial court considered the fact there allegedly was evidence, discovered after the suppression hearing, Hadley had been charged with misconduct for having sexual contact with various women while on duty. On remand, defendant requested a new hearing so he could question Hadley about these charges, arguing such evidence might affect Hadley's credibility and the trial court's assessment of his testimony. Defendant also argued because he had called Hadley as a witness at the hearing (to establish Hadley did not recall the date the search warrant was signed), the court might view the evidence differently if there were a new hearing and the State called Hadley as its witness instead.
The court declined to order a new hearing. First, it noted Hadley's attorney forwarded a letter to the court stating Hadley would assert his Fifth Amendment right to not testify if questioned about any of the charges. Second, the court observed Hadley's testimony merely supplemented the documentary evidence, commenting it was the latter evidence that was pivotal to establishing the search warrant was signed on November 3, 2010. The court observed, "Hadley[,] when you really come down to it[,] . . . was a small cog in the overall hearing and testimony. All he did was confirm things. Confirmed yes, I signed in on that date. That's what the sign-in shows."
See U.S. Const. amend. V. --------
II
On appeal, defendant presents the following arguments for our consideration:
POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT AN EVIDENTIAL HEARING.
POINT II - THE MOTION JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE PROCEEDING.
POINT III - THE SEARCH WAS CONDUCTED ILLEGALLY, WITHOUT A TIMELY WARRANT.
Defendant filed a supplemental brief as a self-represented litigant, in which he presents the following arguments:
POINT I - THE SEARCH EXECUTED AT THE DEFENDANT[']S RESIDENCE OCCURRED BEFORE THE SEARCH WAS AUTHORIZED
a. All of the moving papers support the fact that the search was executed prior to it being authorized by [the judge].
b. According to the log book sign in sheet it was impossible for [the judge] to sign the moving papers at 3:30 p.m. on November 3, 2010.
c. The business log for the [court house] does not stand up to true and unbiased scrutiny.
POINT II - THE DATE ON THE SEARCH WARRANT RETURN SUPPORTS THAT THE SEARCH HAPPENED WITHOUT A VALID WARRANT.
POINT III - THE EMAILS BETWEEN DETECTIVE HADLEY AND [THE ASSISTANT PROSECUTOR] DO NOT PROVE WHEN DETECTIVE HADLEY SUBMITTED THE AFFIDAVIT TO [THE JUDGE].
POINT IV - THE ARREST AND ALLEGATIONS OF OFFICIAL MISCONDUCT UPON DETECTIVE HADLEY LEND CREDENCE TO THE DEFENDANT'S ASSERTIONS OF IMPROPRIETY IN THE CASE AT BAR.
POINT V - THE DEFENDANT'S ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
a. The defendant's attorney failed to vigorously pursue the suppression issue.
b. The defendant's attorney should have called [the judge who signed the search warrant] as a witness at the suppression hearing.
The trial court fulfilled our request to address whether it correctly understood each party's burden of proof when it considered the evidence. We are satisfied the court understood how the burdens of proof were allocated between the parties, and correctly applied the law. The trial court also addressed our second question, whether to reopen the suppression hearing to consider the charges of misconduct against Hadley. In our view, the court did not abuse its discretion when it declined to do so.
After examining the record and briefs, we conclude none of defendant's arguments have any merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.
Most of defendant's arguments pertain to and attack the trial court's factual finding the search warrant was signed before defendant's home was searched. That finding was previously affirmed by us; it was not subject to another challenge before this court, unless the trial court had not correctly viewed the evidence in light of each party's burden of proof and such error affected its ultimate decision, or unless another suppression hearing were held. Neither condition materialized.
Defendant appeals from the trial court's decision to not reopen the hearing for the purpose of allowing Hadley to testify about the misconduct charges. However, "[a] trial court's exercise of [its] discretionary power will not be disturbed on appeal 'unless it has been clearly abused.'" State v. Saavedra, 222 N.J. 39, 55-56 (2015) (quoting State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)). The trial court did not abuse its discretion when it declined to reopen the hearing to explore the topic of Hadley's alleged misconduct. First, Hadley advised he would exercise his right not to testify under the Fifth Amendment if questioned about these charges. Second, in light of the documentary evidence, Hadley's testimony was not as essential to the court's findings as defendant assumes.
As for defendant's claim counsel was ineffective, normally this court does not hear ineffective assistance of counsel claims on direct appeal, not to mention our remand to the trial court was limited to considering just the two issues. However, we have considered defendant's arguments because the record discloses all facts essential to considering defendant's ineffective assistance claims. See State v. Allah, 170 N.J. 269, 285 (2009). Having done that, we are satisfied counsel did not act outside the range of professionally competent assistance.
Specifically, defendant claims his attorney told the court at the outset of the suppression hearing he was not prepared to proceed because he had just received discovery from the State. Defendant claims counsel's comment caused the court to conduct a "truncated hearing," which failed to "protect his rights under the law." The record does not bear out either claim.
Counsel never asserted he was not prepared for the hearing. But even if he had, being unprepared for a hearing because an adversary provided discovery immediately before such hearing is not ineffective assistance. Ineffective assistance occurs when counsel commits an error so egregious he or she was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). There is no evidence counsel was unprepared for the hearing, and then failed to request an adjournment to enable him to get ready for the hearing.
Further, the defect in performance must be such that 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. There is no evidence counsel caused the court to conduct a "truncated" hearing or otherwise induced it to jeopardize defendant's right to a fair hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION