Opinion
DOCKET NO. A-1074-13T1
02-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ADAM REED, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-10-2446. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his convictions for fifteen separate drug, weapons, and related offenses committed on the evening of June 21, 2011, and the early morning of June 22, 2011, in the City of Camden. We affirm.
I.
On the evening of June 21, 2011, Camden City Police Acting Sergeant Benito Gonzalez and Acting Sergeant Christopher Frucci were conducting undercover surveillance of drug activity in Camden, specifically "in the area of Newton between Pine and Spruce Street." Officer Gonzalez testified that as he and Officer Frucci were driving down Newton Avenue, he observed a black male and a female sitting on the steps of a residence. The two were later identified as defendant and co-defendant Elizabeth Pitko. The officers established a surveillance position to observe defendant and Pitko. From his vantage point, Officer Gonzalez saw defendant and Pitko leave the steps, walk to a blue Ford Taurus parked across the street, and drive off. The officers waited to see if they would return, which they did about twenty minutes later, shortly after midnight on July 22, 2011.
A few moments after the pair returned, Officer Gonzalez observed
a black male wearing a red jacket and blue jeans walking from Pine Street towards the vehicle. [The officer] also observed [defendant] step out of the passenger side of the vehicle. [Defendant] was on his cellular phone having a conversation with
someone, at which time the male in a . . . red jacket approached him. They had a conversation, and then they shook hands. [Defendant] then went to the back of the Ford Taurus, opened the trunk, went into the trunk, retrieved an item out of the trunk, [and] handed the item to the unknown black male. The black male had the item in his hand, manipulated the item, and after a few seconds, handed [defendant] paper currency from his pants pocket.
The officer saw defendant place the money in his pocket. Defendant then returned to the passenger seat of the running car, with Pitko in the driver's seat. After another few minutes elapsed, the officer observed defendant exit the vehicle and saw another male approach him. Officer Gonzalez contacted back-up units that were in the area; however, the back-up officers advised him they were still a few blocks away, so he and Officer Frucci moved in, anticipating their arrival. The officers activated their emergency lights and drove up behind defendant and the male.
When the officers exited the vehicle with weapons drawn, defendant had already grabbed a package from the trunk and was holding it in his right hand. Defendant put the package in the trunk and his hand in his jacket pocket. Officer Gonzalez commanded defendant to put his hands in the air. Instead, defendant slammed the trunk closed, ran to the passenger side of the car, entered the vehicle, and the vehicle sped off. A chase ensued until the Taurus crashed into parked cars on Clinton Street. Defendant then exited the vehicle and began to run. Officer Gonzalez gave chase on foot with his weapon drawn and continuously ordered defendant to stop. Officer Gonzalez was injured when he tripped and fell face-first on the pavement. Nevertheless, he continued to give chase. Officer Gonzalez
It was later determined that Officer Gonzalez suffered a severe hamstring tear.
saw [defendant] make a left into a lot, and then [he] followed behind [defendant]. By the time [the officer] turned the lot, [defendant] had made it to the back of the house, and [the officer] continued to follow. At this time, [the officer] was feeling more and more pain in [his] leg. [The officer] started coming to almost a limp. At that point, [defendant] stopped at the back of the house, abruptly turned, pulled his weapon, and fired one round.
The officer was not struck by the bullet, but nevertheless fell to the ground. Defendant then attempted to fire another shot at the officer, but the gun malfunctioned. Defendant dropped the weapon and continued to run, but was later apprehended by other officers after a "brawl" had ensued with the other officers. A search of defendant's person uncovered his driver's license, Pitko's driver's license, and over $1000 in cash; cocaine was found in the Taurus.
In September 2013, a Camden County Grand Jury indicted and charged defendant with fifteen counts: third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (Count One); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (Count Two); third-degree possession of a CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); second-degree possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Four); second-degree resisting arrest/eluding, N.J.S.A. 2C:29-2(b) (Count Five); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (Count Six); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) (Count Seven); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Eight); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (Count Nine); fourth-degree aggravated assault by pointing, N.J.S.A. 2C:12-1(b)(4) (Count Ten); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (Count Eleven); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (Count Twelve); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Thirteen); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Fourteen); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (Count Fifteen). The court bifurcated the certain persons charge (Count Fifteen). Judge Fox presided over a jury trial, which began on May 14, 2013. On May 31, 2013, the jury returned a guilty verdict as to all charges (Counts One through Fourteen). On June 3, 2013, the same jury returned a guilty verdict convicting defendant of the certain persons offense (Count Fifteen).
In addition to appropriate fines and penalties, the judge sentenced defendant to an aggregate term of sixty-six years in prison, subject to forty-seven years and three months of parole ineligibility. The judge merged Counts One and Three with Count Two; Counts Six and Eleven with Count Five; Counts Eight, Nine, Ten, and Thirteen with Count Seven; and Counts Twelve and Fourteen with Count Fifteen. As to Count Seven, the judge sentenced defendant to forty-five years in prison, mandatory extended term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, with five years of post-release parole supervision. As to Count Two, the judge sentenced defendant to eight years in prison consecutive to Count Seven and subject to four years of parole ineligibility. As to Count Four, the judge sentenced defendant to seven years in prison concurrent to Count Two but consecutive to Count Seven. As to Count Five, the judge sentenced defendant to an eight-year prison term consecutive to Counts Two, Four, and Seven. Finally, as to Count Fifteen, the judge sentenced defendant to a five-year prison term with five years of parole ineligibility, consecutive to counts Two, Four, Five, and Seven.
II.
On appeal, defendant argues the following points:
POINT I
REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCTED DENIED [DEFENDANT] HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I., ¶¶ 1, 10. (Not Raised Below).
POINT II
INSOFAR AS THE STATE FAILED TO PROVIDE ANY EVIDENCE THAT [DEFENDANT] WAS PROPERLY LIABLE FOR THE ELUDING UNDER THE STATE'S THEORY OF ACCOMPLICE LIABILITY, THAT CONVICTION MUST BE VACATED. (Partially Raised Below).
POINT III
INSOFAR AS THE STATE FAILED TO PROVIDE ANY EVIDENCE THAT [DEFENDANT] POSSESSED ANY CDS WITH THE INTENT TO DISTRIBUTE SAME WIHTIN 500 FEET OF A PARK AS DEFINED BY N.J.S.A. 2C:35-7.1, THAT CONVICTION MUST BE VACATED. (Partially Raised Below).
POINT IV
BECAUSE THE CREDIBLE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] WAS GUILTY OF THE SCHOOL ZONE OFFENSE, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THAT COUNT. (Not Raised Below).
POINT V
THE SENTENCING COURT IMPROPERLY FAILED TO MERGE THE POSSESSION WITH INTENT TO DISTRIBUTE AND THE SCHOOL ZONE OFFENSE INTO THE PUBLIC PROPERTY OFFENSE.
POINT VI
THE SENTENCING COURT ERRED IN ORDERING CONSECUTIVE SENTENCES FOR THE THREE "GROUPINGS" OF OFFENSES.
POINT VII
[DEFENDANT]'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
A.
Defendant contends for the first time that the prosecutor's remarks in his opening and summation amounted to misconduct and deprived him of a fair trial. We conclude this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied that the prosecutor's opening statement and summation, while passionate, fell well short of being so egregious that defendant was deprived of a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999). We also note that defense counsel did not object during the prosecutor's opening statement or summation, suggesting "that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. The general presumption is that if no objection was made, the comments were not prejudicial. Id. at 83.
B.
Defendant next argues the judge erred by failing to grant a motion for acquittal as to the eluding charge, which was based on a theory of accomplice liability, because the State failed to prove that defendant engaged in affirmative action to aid Pitko in eluding the police.
Rule 3:18-1 states:
At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.Our Supreme Court set forth the test for determining whether a motion for acquittal is warranted in State v. Reyes, 50 N.J. 454, 458 (1967). The Court explained
the broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.If the State has failed to prove any one of the elements of the crime charged, the motion must be granted. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:18-1 (2016). In deciding a motion for acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).
[Id. at 458-59.]
This court will "review the record de novo in assessing whether the State presented sufficient evidence to defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).
N.J.S.A. 2C:29-2(b) states:
Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.A defendant may be found guilty as an accomplice if, "[w]ith the purpose of promoting or facilitating the commission of the offense[,]" he or she solicits another to commit the crime or "[a]ids or agrees or attempts to aid such other person in planning or committing it." N.J.S.A. 2C:2-6(c)(1)(a) and (b).
Here, the judge applied the test outlined in Reyes and found there were
sufficient inferences based upon the fact that apparently the defendant rented the vehicle, the defendant was seen on two occasions, according to the testimony, in the vehicle. The defendant is alleged to have been selling drugs out of the rear of the vehicle. And, as the State points out, when confronted with the police the defendant got into the passenger side of the vehicle and it was at that time that the vehicle took off.
Following our review, we conclude the judge did not err in denying defendant's motion. Given the evidence as a whole and the reasonable inferences to be drawn therefrom, there was sufficient evidence to find him guilty of eluding as an accomplice. See State v. Hakim, 205 N.J. Super. 385, 389 (App. Div. 1985).
Defendant and Pitko were sitting together on the steps; they left together in the Taurus; they returned together, after which defendant engaged in two transactions while she was sitting in the driver's seat; defendant saw the police drive up with their emergency lights activated, and despite being told to keep his hands up, slammed the trunk closed and entered the passenger seat; and after entering the passenger seat, the car immediately drove away. There is more than adequate circumstantial evidence to warrant a jury instruction on the theory of accomplice to eluding. That is, a reasonable jury could find that defendant urged Pitko to drive away to elude the police. Moreover, it was not until defendant entered the car that Pitko drove away. Presumably, Pitko, once she saw the police approaching, could have left immediately while defendant was outside the car. Her failure to do so raises at least an inference that she drove away at defendant's behest.
The State need only present evidence that when viewed "in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, supra, 50 N.J. at 458-59 (emphasis added). Here, there was sufficient evidence on the record such that a reasonable jury could find defendant guilty as an accomplice to eluding.
C.
As to Points III and IV raised in defendant's brief, he concedes in his reply brief that sufficient evidence existed to establish a prima facie case for both the public park and school zone convictions and has withdrawn those points from consideration on appeal.
Defendant contends that the judge erred by failing to merge his "possessory CDS convictions" into his conviction for possession with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Four). Defendant presumably means that Count Two (second-degree possession of a CDS with intent to distribute) should have been merged with Count Four (possession of a CDS with intent to distribute within 500 feet of a public park). The judge, at sentencing, merged Counts One (third-degree possession of a CDS) and Three (third-degree possession of a CDS with intent to distribute within 1000 feet of a school) with Count Two (second-degree possession of a CDS with intent to distribute).
Defendant's argument invokes a line of cases addressing sentencing implications of simultaneous convictions under N.J.S.A. 2C:35-5 (Section 5), N.J.S.A. 2C:35-7 (Section 7), and N.J.S.A. 2C:35-7.1 (Section 7.1). However, given the facts of this case, we need not address the constitutional or statutory issues that may arise when a defendant is convicted of multiple offenses for the same conduct. See, e.g., State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000) (concluding that where a "single location fell within two statutorily separately prohibited zones" and there were no "additional facts to demonstrate that defendant's conduct was an integral part of a larger scheme, or was episodic in nature," punishing defendant for both offenses violated double jeopardy).
In Parker, the defendant was apprehended in a single criminal transaction; the defendant simply happened to be simultaneously within two statutorily proscribed areas at the time. Id. at 418. By contrast, here, there was a saga that began in one location but led to different locations, with defendant successively entering different proscribed areas to engage in CDS transactions. Thus, the judge did not err by not merging the two convictions.
Our Supreme Court, in State v. Davis, 68 N.J. 69, 81-82 (1975), made clear courts should undertake a flexible inquiry, taking into account the facts and circumstances of the situation to determine whether multiple offenses occurred. Here, when defendant was initially confronted by the police, he was susceptible to a Section 5 charge (Count Two). At that point, defendant was not within 500 feet of the park. It was only later, when defendant and Pitko sped away and their car crashed across the street from the public park, that defendant possessed the CDS within the proscribed area for a Section 7.1 charge (Count Four). These are two separate events, and the judge did not abuse her discretion by correctly deciding not to merge them.
D.
Defendant argues the court improperly imposed consecutive sentences on his convictions for attempted murder, possession with intent to distribute within 500 feet of a public park, eluding, and the certain persons offense. Defendant argues the crimes committed and the objectives of the crimes were "inexorably linked" and therefore the sentences should have been concurrent rather than consecutive. We disagree.
This court reviews sentencing determinations deferentially. Succinctly,
[a]ppellate review of sentencing is a three-step process requiring the reviewing court to determine (1) whether the legislatively fixed sentencing guidelines were followed, (2) whether the aggravating factors and mitigating factors found by the trial court were based upon competent, credible evidence in the record and (3) whether application of the guidelines to the facts of the case makes the sentence clearly unreasonable so as to shock the judicial conscience. On review, an appellate court should not substitute its judgment for that of the trial court. The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.N.J.S.A. 2C:44-5(a) states "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." Our Supreme Court has set forth "general sentencing guidelines for concurrent or consecutive-sentencing decisions (including any parole ineligibility feature) when sentence is pronounced on one occasion on an offender who has engaged in a pattern of behavior constituting a series of separate offenses or committed multiple offenses in separate, unrelated episodes." State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). These criteria are:
[State v. Burton, 309 N.J. Super. 280, 290 (App. Div.) (citations omitted), certif. denied, 156 N.J. 407 (1998).]
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Id. at 643-44.]
Here, the judge carefully considered the Yarbough criteria in determining defendant's sentence. The judge determined that Counts Two (second-degree possession of a CDS with intent to distribute) and Four (second-degree possession of a CDS with intent to distribute within 500 feet of a public park) were to run concurrently as they were not "predominantly independent of each other." The judge then found, however, that the drug offenses had "objectives predominantly independent of the attempted murder[,] aggravated assault[,] . . . eluding[/]resisting[,] . . . and the weapons possession counts." As such, the judge concluded "the sentences imposed on the surviving resisting arrest[/]eluding charge . . . will be served consecutively to the sentences imposed on the drug possession and distribution charges" as well as to the attempted murder charge. Finally, the judge imposed a consecutive sentence as to the certain persons charge because "the status of being a certain person prohibited from carrying a weapon is aimed at a different wrongdoing than offenses such as attempted murder, drug possession[/]distribution and resisting arrest[/]eluding[.]"
In essence, the judge recognized that although this was one ongoing event that began when the officers witnessed the drug transactions and concluded when defendant was apprehended, the nature of the crimes committed during that period were diverse and had different outcome goals, which required the judge to parse them out and determine which sentences should run concurrently and which should run consecutively. The judge carefully considered the evidence and set forth her factual findings on the record justifying the imposition of consecutive sentences for the different "categories" of crimes. Just because the crimes occurred in temporal proximity to each other does not mean that different crimes, with different objectives and different levels of violent conduct, should not be considered by the judge.
As to defendant's final argument, namely that his sentence was excessive, we conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
III.
Defendant also submitted a supplemental pro se brief, in which he argues:
POINT I
THE STATE COMMITTED DISCOVERY AND BRADY VIOLATIONS WHEN IT FAILED TO DISCLOSE TO DEFENSE COMPUTER[-AIDED] DISPATCH RECORDS [(C.A.D.)] AND INFORMATION THAT SGT. KEVIN MARTIN WAS A MATERIAL WITNESS WHO MADE STATEMENTS OVER THE POLICE DISPATCHER EXCULPATORY TO THE DEFENSE AND CONTRADICTING BENITO GONZALEZ'S CLAIM OF []ATTEMPTED MURDER[]. DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WAS VIOLATED. HIS CONVICTIONS MUST BE REVERSED AND A NEW TRIAL GRANTED.
POINT II
DEFENDANT['S] CONSTITUTIONAL RIGHT TO DUE PROCESS WAS VIOLATED WHEN OFFICER JANELL SIMPSON OF THE CAMDEN COUNTY POLICE DEPT. ALLOWED POLICE RADIO TRANS[MISSIONS] WITH EXCULPATORY VALUE TO BE ERASED (DESTROYED) THUS INTERFERING WITH DEFENDANT[']S RIGHT TO PRESENT A COMPLETE DEFENSE. DEFENDANT[']S CONVICTION MUST BE REVERSED AND HIS INDICTMENT DISMISSED.
POINT III
[THE] TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED DET. J. SIMPSON TO TESTIFY AS A SURROGATE IN PLACE OF THE ACTUAL CRIME SCENE INVESTIGATOR WHO PROCESSED BALLISTIC
EVIDENCE, MADE THE POLICE REPORTS AND SIGNED THE CHAIN OF CUSTODY. [THE] TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO MOVE THE FOLLOWING INTO EVIDENCE VIA THE BUSINESS RECORD EXCEPTION: TESTIMONY OF DET. SIMPSON (PERTAINING TO); ALL BALLISTIC EVIDENCE DOCUMENTATION, BALLISTIC EVIDENCE MENTIONED THEREIN ALL CHAIN OF CUSTODY IN VIOLATION OF DEFENDANT[']S U.S. CONST. 6TH AMEND. CONFRONTATION CLAUSE AND N.J. CONSTITUTION ART[.] I PARA. 10.
POINT IV
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR AN ADVERSE INFERENCE INSTRUCTION AND OTHER DEFENSE LEVER[A]GING DISCOVERY SANCTIONS WHEN IT WAS REALIZED THAT THE STATE HAD VIOLATED DEFENDANT[']S DUE PROCESS BY ALLOWING THE RADIO TRANSMISSION EVIDENCE TO BE DESTROYED VIOLATING DEFENDANT[']S U.S. CONST. 6TH AMENDMENT RIGHT TO COUNSEL.
POINT V
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL EVINCED IGNORANCE OF RELEVANT AND BINDING LAW BY FAILING TO OBJECT TO THE STATE[']S AND TRIAL COURT[']S LEGAL REMEDY OF ADMITTING INCOMPETENT BALLISTIC EVIDENCE, DOCUMENTATION AND CHAIN OF CUSTODY VIA THE BUSINESS RECORDS EXCEPTION, WHICH DOES NOT APPLY TO LAW ENFORCEMENT[] GENERATED DOCUMENTS.
POINT VI
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FAMILIARIZE HIMSELF WITH THE CAMDEN POLICE DEPARTMENT COMMUNICATIONS PROCEDURE BEFORE CROSS-EXAMINING DET. JANELL SIMPSON AND OTHER OFFICERS CONCERNING ERASED RADIO TRANSMISSIONS VIOLATING DEFENDANT[']S U.S. CONST. 6TH AMEND. RIGHT TO COUNSEL AND RIGHT TO CONFRONT WITNESSES AGAINST HIM.
POINT VII
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBTAIN EXCULPATORY [C.A.D.] RECORDS ALTHOUGH THEY WERE AVAILABLE TO HIM UPON REQUEST AND SUPPORT THE DEFENSE THAT SGT. GONZALEZ'S STORY OF []ATTEMPTED MURDER[] WAS NOT TRUE[,] VIOLATING DEFENDANT'S U.S. CONST. 6TH AMEND. RIGHT TO ASSISTANCE OF COUNSEL.
POINT VIII
[DEFENDANT]'S CONVICTION MUST BE REVERSED BECAUSE OF THE CUMULATIVE ERROR THAT OCCURRED DURING TRIAL.
A.
Defendant contends that the State committed a Brady violation by failing to disclose the C.A.D. report for the night the crimes took place. The report has two entries, the first of which says "shots fired[,]" and the second of which says that no shots were fired.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, 1963 (1963).
Rule 3:13-3 states that "[d]iscovery shall include exculpatory information or material." "It is well-settled that the suppression by the prosecution of evidence favorable to a defendant violates due process of law where the evidence is favorable to the defense, and is material." State v. Russo, 333 N.J. Super. 119, 133-34 (App. Div. 2000) (citing Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1197, 10 L. Ed. 2d at 218). To establish a Brady violation, defendant must satisfy a three- prong test: "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." Id. at 134.
Evidence will be considered material where a "defendant demonstrates that there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." Ibid. The question is whether a defendant received a fair trial, namely a trial in which the verdict is "worthy of confidence" even without the presentation of the undisclosed evidence. Ibid.
Here, as a threshold matter, defendant failed to raise the Brady allegation before the trial judge. This court generally declines to consider issues that were not presented to the trial court when there was an opportunity to do so. State v. Arthur, 184 N.J. 307, 327 (2005). Because defendant failed to raise the Brady issue below, we need not consider it on appeal. Nevertheless, even considering defendant's contention on the merits, his argument still fails.
Specifically, defendant has failed to establish that if the evidence had been properly introduced, the result would have been different. Russo, supra, 333 N.J. Super. at 134. The evidence at trial made clear that an officer recovered the firearm at the scene and that the recovered gun misfired, further corroborating Officer Gonzalez's story. There was ample evidence in the record to support defendant's conviction for attempted murder, and therefore the result would not have been different even if the allegedly withheld evidence was introduced.
Defendant also contends that his due process rights were violated when Officer Simpson allowed the police radio transmissions to be erased and destroyed. Officer Simpson was employed by the Camden City Police Department on the night of the incident and was asked to locate the 911 calls and police radio transmissions involving defendant. Officer Simpson failed to collect the recordings before they were recycled and reused.
At trial, it was adduced that the recordings are recycled every three months. --------
It is well recognized that "a defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed." State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.), certif. denied, 101 N.J. 335 (1985) (citation omitted). However, this privilege is not absolute. Ibid. There are
three factors on which a court should focus to determine whether a due process violation has occurred when there has been either suppression, loss or destruction of physical
evidence in a criminal trial: (1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; (3) whether defendant was prejudiced by the loss or destruction of the evidence.
[Id. at 479 (citations omitted).]
Here, defendant fails to point to any evidence of bad faith or connivance on the part of the State. Rather, the record suggests that an honest error occurred and the evidence was lost. At trial, when Officer Simpson was cross-examined on her failure to retain the radio calls, she explained she
was new to the shooting and response unit. [She] had just gotten laid off. [She] got rehired back, and at that time in the unit, [she] didn't know [her unit] had to collect [the radio calls]. [She] thought the Camden County Prosecutor's Office would collect them, and it was a miscommunication on [her] part.
Moreover, as discussed above, the evidence is of questionable materiality given the weight of the evidence in the record supporting defendant's conviction. Finally, defendant's counsel capitalized on the officer's failure to preserve the evidence in his closing arguments, questioning the veracity of Officer Simpson's assertion and stating that defendant was "entitled" to hear the contents of the radio calls. Thus, as defense counsel was able to capitalize on the oversight, it is not clear that defendant suffered prejudice as a result of the loss of evidence.
B.
Defendant argues that allowing Officer Simpson to testify regarding the evidence discovered at the crime scene and the chain of custody of the evidence, when she herself did not actually collect the evidence, violated his right to confrontation under the Sixth Amendment. Defendant also argues that the records admitted were not business records and should have been excluded as inadmissible hearsay.
At trial, Officer Simpson testified that she responded to the "shots fired" call and proceeded to the scene of both the crash and the shooting. She testified it was her duty to collect ballistic evidence and that she directed evidence officers to collect the evidence found at the scene. She testified that the "weapon and the projectile" were collected. Officer Simpson was presented with and recognized "a Camden City evidence and property inventory form" which detailed all of the physical evidence discovered at the scene. She also testified that the "chain of custody form" tracked the chain of custody of each of the collected items.
Defense counsel objected to the form being introduced into evidence because the document indicated that it was an Officer Rishman who actually picked the weapon up at the scene. Defense counsel stated that Rishman should have been the one to testify as to the collection of the weapon, as he was the one who wrote the report. The State successfully moved the document into evidence under the business records exception to the hearsay rule.
We conclude that defendant's Sixth Amendment Confrontation Clause argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The Supreme Court has made clear "it is not the case[] that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 322 (2009). Rather, the Court explained that gaps in chain of custody go to the weight of the evidence, not its admissibility. Ibid.
Defendant also objects to the admission of the documents into evidence, arguing that the forms were improperly introduced as business records. In criminal cases, a document is admissible as an exception to the hearsay rule if it is not testimonial. Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177, 195-96 (2004). Business records are not testimonial. Ibid. To qualify as a business record:
First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.At trial, Officer Simpson testified that the Camden City Police Department created similar records every time physical evidence was recovered. The documents were admitted as business records without objection. Defendant now contends the records cannot be admissible business records because they were prepared in anticipation of litigation. Defendant has offered no evidence that these records were prepared for purposes of litigation, and no such evidence appears on this record. Thus, the judge did not err by admitting the documents as business records.
[State v. Matulewicz, 101 N.J. 27, 29 (1985).]
C.
Defendant raises various ineffective assistance of counsel arguments that essentially reassert his substantive points on direct appeal and argue that counsel was ineffective for failing to recognize and remedy those perceived issues during trial.
"Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Ordinarily, a "defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We conclude that any ineffective assistance claim defendant may seek to raise is best left for a post-conviction relief (PCR) petition. Our judgment does not prejudice defendant's right to bring a PCR petition.
D.
Defendant's final argument, that cumulative errors deprived him of a fair trial, is without merit in light of our conclusion that no error occurred below.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION