Opinion
DOCKET NO. A-1900-12T2
08-08-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE HAYES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-04-533. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Eugene Hayes appeals from the August 1, 2012 order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing. We affirm.
I.
Tried to a jury, defendant was 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 2C:35-5(b)(3); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2. Defendant was sentenced as a persistent offender to eight years in prison with four years of parole ineligibility. Defendant appealed and we affirmed the conviction but remanded for reconsideration of the sentence imposed pursuant to State v. Pierce, 188 N.J. 155 (2006). State v. Hayes, No. A-3612-05 (App. Div. Feb. 15, 2007) (slip op. at 10), certif. denied, 194 N.J. 270 (2008). Defendant was resentenced to an eight-year term of imprisonment with a four-year period of parole ineligibility. Defendant filed a timely petition for PCR. After counsel was assigned, the PCR court heard oral argument and denied the petition without an evidentiary hearing.
On appeal, defendant presents the following arguments:
POINT I
THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE PCR COURT IMPROPERLY RELIED ON ASSUMPTIONS RATHER THAN FACTS.
POINT II
THE ORDER DENYING PCR MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT PERMITTED A POLICE OFFICER TO TESTIFY AS TO HIS BELIEF IN DEFENDANT'S GUILT IN VIOLATION OF STATE V. MCLEAN, 205 N.J. 438 (2011). (NOT RAISED BELOW).
II.
We repeat the facts as they appear in our 2007 opinion:
Shortly before 9 p.m. on August 5, 2004, Detective Richard Ricco of the Morris County Prosecutor's Office was participating in an undercover narcotics investigation in Morristown. The detective was dressed in civilian clothing and operating an unmarked vehicle. In that capacity, Ricco approached co-defendant Cynthia Stallone, who was walking on Morris Avenue, and asked to purchase two bags of cocaine at $40 each. Stallone told Ricco that she had to call a friend to obtain the drugs. While Ricco waited in his vehicle, Stallone walked around the corner out of his sight. When she returned, she informed Ricco that they needed to meet her friend at the Morristown train station to obtain the drugs. Co-defendant Gary Tillet, a friend of Stallone, also got into the back seat of Ricco's vehicle, after which Ricco proceeded to the train station.
After waiting in the train station parking lot for about fifteen to twenty minutes, a red Ford Taurus arrived. Stallone identified the driver of the vehicle as her friend. She then walked over to the driver's side of the Taurus and handed the driver $80, which had been given to her by Ricco prior to her leaving the vehicle. In return, the driver of the Taurus handed her an item. Stallone
returned to Ricco's vehicle and handed him two bags of cocaine. The Taurus drove away and Ricco drove Stallone home. Stallone was not arrested at that time in order to preserve Detective Ricco's undercover identity.
Detectives Matthew Edwards and Jan Monrad of the Morristown Police Department were both working as back-up surveillance to Ricco and observed the events in the train station parking lot. Detective Edwards, driving an unmarked car, then followed the Taurus from the parking lot, and requested that police headquarters provide a marked patrol vehicle to stop the Taurus. Police Officer Carmen Carpanega responded and stopped the vehicle on Normandy Parkway after pulling in front of Detective Edwards's vehicle, which had continuously maintained contact with the Taurus. Defendant was the driver of the Taurus. There was also a passenger, co-defendant Sheena Joy, as well as one or two children in the back seat. Officer Carpanega told defendant that he was being stopped because he was seen acting suspiciously at the train station. Defendant claimed that he was employed by a taxi company and was visiting the taxi stand at the train station. After questioning, Officer Carpanega, pursuant to instructions, let defendant go on his way. All of the suspects were subsequently arrested.
[State v. Hayes, supra, slip op. at 2-4.].
A.
Defendant claims his trial counsel was ineffective in failing to call Cynthia Stallone as a witness. The PCR court determined the decision not to call Stallone was a matter of "sound trial strategy" by trial counsel, as Stallone's truthful testimony could have been "very harmful" to defendant.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. The defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
Defendant claims that the trial court relied on "assumptions" rather than actual facts in concluding that his trial counsel's decision not to call Stallone was a matter of trial strategy. At the time of trial, Stallone had pled guilty and had given a statement implicating defendant. Defendant fails to set forth how Stallone's testimony could have been helpful to him had his counsel called her as a witness. Importantly, at the time of trial, Stallone had pled guilty and given a statement implicating defendant. Accordingly, defendant's claim, which is devoid of the factual underpinnings supporting PCR, is the type of "bald assertion" we rejected in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Limiting his claim of ineffective assistance of counsel to this issue, we conclude defendant has failed to satisfy either Strickland prong, as he has not demonstrated deficient performance or prejudice. We find no error in the order denying PCR relief.
B.
Defendant next argues that Detective Jan Monrad impermissibly presented opinion evidence at trial without being qualified as an expert. Monrad, who was working as a surveillance officer with Detective Ricco, testified that he observed a "hand to hand transaction" between Stallone and defendant that he "believed to be drugs." Monrad also described the exchange between defendant and Stallone as a "drug transaction."
Defendant failed to raise this issue on direct appeal and now seeks to assert this claim through PCR. "Rule 3:22-4 imposes a procedural bar to prevent claims from being raised on PCR that reasonably could have been raised on direct appeal." State v. McQuaid, 147 N.J. 464, 483 (1997).
Even if defendant's claim is considered on the merits, we find no error that requires the reversal of his conviction. Defendant relies on State v. McLean, 205 N.J. 438 (2011), in arguing that Monrad's testimony denied him a fair trial.
In McLean, a police officer testified at trial that he observed two "hand-to-hand" drug transactions between the defendant and two other persons. Id. at 444-45. The Court reversed the defendant's convictions for possession with intent to distribute and remanded for a new trial, noting that the testimony of the police officer was "elicited by a question that referred to the officer's training, education and experience, in actuality call[ing] for an impermissible expert opinion." Id. at 463. The Court also held that the testimony was impermissible as a lay opinion "because it presumed to give an opinion on matters that were not beyond the understanding of the jury." Ibid.
Here, Monrad's direct testimony was brief, and defendant's counsel initially failed to object when he testified that defendant gave Stallone a package he "believed to be drugs" and that he believed he witnessed a "drug transaction."
On cross-examination, and again on re-cross, Monrad conceded that he did not actually see drugs exchanged between Stallone and defendant. During his second re-direct, the prosecutor solicited the following testimony:
Q: Detective, based on your training and experience, did a drug transaction just take place in front of you?
A: Yes, it had.
Q: Okay. And who was that drug transaction between?
A: Cynthia Stallone and the defendant.
As in McLean, defendant's counsel objected when the prosecutor asked Monrad if, based on his training and experience, he believed he witnessed a drug transaction. The judge overruled the objection and Monrad testified that he observed a drug transaction between Stallone and defendant.
The State never sought to offer Monrad as an expert and therefore his testimony exceeded the bounds as outlined for lay witnesses under McLean. Our task is to determine whether the error in the admission of this portion of Monrad's opinion testimony requires reversal of the jury verdict. Unless there is a reasonable doubt that the error contributed to the verdict, the error will be deemed harmless and disregarded on appeal. See State v. Macon, 57 N.J. 325, 333 (1971).
Placed in context, Monrad's observations of Stallone's transaction with defendant came after she had agreed to obtain two bags of cocaine for Ricco from a friend. When the Taurus arrived, Stallone left Ricco's car to speak with the driver, who she had previously identified as her source of the drugs. Finally, when Stallone returned, she gave Ricco two bags of cocaine. In the wake of Ricco's detailed description of how he obtained the cocaine, Monrad's testimony that the transaction between Stallone and the Taurus driver appeared to be a drug transaction was cumulative, redundant, and not clearly capable of producing an unjust result. See R. 2:10-2. Under the circumstances, we conclude that Monrad's testimony did not deprive defendant of a fair trial.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION