Opinion
DOCKET NO. A-1908-12T3
05-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAMIELLE TONDEE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Waugh.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0684.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
A jury found defendant Damielle Tondee guilty of second-and third-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5; and employing a juvenile, K.G., in the distribution of CDS, N.J.S.A. 2C.35-6. The jury, however, found defendant not guilty of a first-degree crime charged in the indictment — being the leader of a narcotics trafficking network, N.J.S.A. 2C.35-3.
Based on his prior convictions, defendant was eligible for a mandatory extended term and a period of parole ineligibility pursuant to N.J.S.A. 2C:43-6f. In June 2008, the judge sentenced defendant to an aggregate term of imprisonment for twenty-two years and entered the judgment of conviction.
We affirmed defendant's conviction on direct appeal but remanded with direction to merge and vacate defendant's conviction and sentence for third-degree conspiracy; the Supreme Court denied certification. State v. Tondee, No. A-3106-08 (App. Div. Oct. 29, 2010) (slip op. at 24), certif. denied, 205 N.J. 273 (2010).
Defendant filed a timely petition for post-conviction relief (PCR) in April 2010. He now appeals the trial court's July 5, 2012 denial of that petition.
The evidence presented at defendant's trial is set forth in our prior opinion. For that reason, we discuss the facts of record only to the extent necessary to provide context for our discussion of the issues raised here. Id. at 3-7.
With information obtained from surveillance and authorized wiretaps, search and arrest warrants were executed at three locations in Jersey City on the same day. Although physical evidence supporting defendant's convictions was seized that day, defendant was not at any of the three locations. Defendant was linked to the drugs by intercepted telephone conversations, surveillance videos, and testimony from one of defendant's several co-conspirators — Porsche Speaks — and the investigating officers.
The State also presented recordings of defendant's intercepted conversations with his co-conspirator Speaks and with the juvenile, K.G. Speaks, who had pled guilty prior to defendant's trial, admitted to storing drugs for defendant at her apartment, and during her testimony she explained what she understood defendant to mean when he used code words during those conversations. An officer, qualified as an expert witness, also explained the significance of words commonly used in the drug world and not used in common discourse familiar to ordinary jurors. During defendant's conversations with K.G., defendant directs K.G. to bring him heroin, demands to know the location of and a way to gain access to drugs K.G. is holding, discusses what drugs K.G. has distributed and has left, asks K.G. for money he owes him and tells K.G. he is coming to get him.
Officers who observed defendant and K.G. together testified as well. They saw defendant pick K.G. up at his home and return to drop off K.G., who was carrying a bag.
Defendant did not testify or present any witnesses at trial, and the State did not call K.G. as a witness. The theory of the defense was to attack the adequacy of evidence showing defendant's involvement in a drug-distribution conspiracy. During his opening statement, his questioning of the witnesses and in his summation, defense counsel focused on evidence and witnesses that were not presented.
In his opening statement, defense counsel noted that the State would not call K.G. as a witness. He told the jurors that they would not hear K.G. say that defendant hired him or that he was selling drugs for him.
Defense counsel, in cross-examining the officer who supervised the wiretap, stressed the role and motive of a confidential informant who gave the officer defendant's phone number. In response to defense counsel's questions, the officer acknowledged that informants generally hope to obtain favorable treatment from a prosecutor. The officer explained that this informant placed a call, in the officer's presence and while he was listening in, to a phone that was answered by someone who identified himself as Damielle, defendant's first name. The officer also acknowledged that telephone records indicated that the phone number called was assigned to Leisha Hill, whom the officers never located. Additionally, the officer admitted that no one involved in the investigation had ever seen defendant with drugs.
On re-direct, the officer explained that the informant in this case never received a benefit and came to his office on his own. Nevertheless, in summation, defense counsel stressed that defendant was on trial because of the confidential informant and Speaks. And, he went on to ask the jurors to consider whether they believed that this confidential informant, unlike others, had nothing to gain by helping the officer. Defense counsel also stressed Speaks' obvious motive to cooperate given that the police found drugs and guns in her home.
At sentencing, defense counsel urged the judge to impose minimum concurrent sentences. His argument included the following comments on his client's character and attitude, N.J.S.A. 2C:44-1b(9):
Judge, you know, I met Damielle, probably, two years ago or so. So, quite honestly, Judge, I think that of anyone in the [c]ourtroom[,] I probably know Damielle the best. And I can tell you, in the beginning, we did not get along. I don't
think he like[d] me. Quite honestly, I didn't like him. We butted heads a lot.
I say that, Judge, because — and I'm going to direct it towards mitigating factor 9, about his character and attitude. And I know Your Honor hears a number of people come here and argue for that mitigating factor for sentence.
I think, Judge, in this case it truly applies. As I've met Damielle, and I've probably sat with him at the Bergen County jail maybe 20 times. And not only — not always talking about this case. We've talked about each others family. About his children, about my children. About his upbringing, and my upbringing. I grew up in Hudson County myself, as did Damielle.
I think the — the big problem with — with Damielle's upbringing was his family. And you know, if you've been in this [c]ourthouse the past number of years, you've heard his father's name, Peter Barnes. He was a narcotics dealer in Hudson County, [and] is now serving a significant period of time.
That was the lifestyle that he grew up with. That was the lifestyle that he saw.
THE COURT: I sentenced Mr. Barnes.
[DEFENSE COUNSEL:] So, Your Honor is more familiar with him than anyone. And as far as — he didn't have a father figure, obviously. His mother, she was a drug addict herself. . . .
But — and you know, Judge, he's pretty candid in — in page 13 of the pre-sentence report. And I go to the — quite honestly, I give the probation officer a lot of credit. Because I think she recognizes that he's remorseful, and he regrets what he's done.
You know, unfortunately, I think a lot of times it takes someone to get to the low point in their life to start looking back on things and saying, wow, what a mess I have made of myself. And the mess is his prior criminal history.
You know, it's very easy for someone to come before Your Honor and — say these things. I'm a changed man, everything's going to be different now. All because they're standing here, because Your Honor's going to affect them for the rest of their lives. But I honestly think, Judge, that he truly, truly is remorseful.
And you know, some of the things we've talked about a lot when we'd sit down at the jail in Bergen County, were my children and his children, they're just about the same age. I have a two year old and a five year old, he's got a three year old and a five year old.
And you know, we've had a lot of heart to heart conversations, especially after the verdict. After the verdict, now he's saying, wow, now I don't know what's going to happen with the rest of my life. And Your Honor [is] going to basically control that.
And I don't — I don't think he is as concerned about himself as much as he is about his children. Because — he realized he didn't have any father figures when he was growing up. He had a grandmother who help[ed] — who did the best she could. But he saw the lifestyle that was being led by his father, by his relatives. And that was the lifestyle that he walked into.
He didn't have anybody to steer him [in] a different direction. And I think he is — is, quite honestly, scared. After the
verdict, when I sat with him, a couple of days afterwards, he's scared of, again, not being able to be there for his children. And I guess, Judge, that would lead into mitigating factor 11, which is creating a hardship, quite honestly, to his dependents. A three and a five year old. Two boys.
He knows that even if Your Honor were to give the low end of the sentence[,] he's not going to see them for a long time. At least on the outside of a prison. And I think that reality has, quite honestly, hit home. When we talked about the case afterwards, he recognizes that he made some bad, bad decisions.
I don't think, Judge, that Damielle is a bad person, a violent person, but I think he's made some bad decisions. And unfortunately, it's almost as if some of those decisions were made for him before he could even make them. By his family. Like I said, Judge, he had a father who was doing the same thing that he got convicted of.
. . . .
And it's heartfelt, Judge. And quite honestly, I didn't say, you know, prepare anything for the Judge, you should say something to the Judge. He took it upon himself. He wrote it on his own. He read it to me a few days ago. He's just asking for, I guess, the chance that he never got as a child.
. . . .
On defendant's direct appeal, defendant raised the following issues:
I. THE DEFENDANT'S RIGHT OF CONFRONTATION WAS VIOLATED WHEN THE COURT PERMITTED DEFENSE COUNSEL TO
ELICIT INFORMATION ABOUT A CONFIDENTIAL INFORMER. (Partially Raised Below).
Nature Of The Error.
Impact On The Jury's Verdict.
Defense Counsel's Conduct In Bringing about The Error.
II. OTHER CRIME EVIDENCE, SPECIFICALLY TESTIMONY OF DOMESTIC VIOLENCE BETWEEN SPEAKS AND THE DEFENDANT, WAS IMPROPERLY ADMITTED AND HIGHLY PREJUDICIAL. (Not Raised Below).
III. THE TRIAL COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL ON THE EMPLOYING A JUVENILE OFFENSE.
IV. THE COURT ERRED IN FRACTIONALIZING THE CONSPIRACY COUNT INTO TWO SEPARATE OFFENSES, FAILING TO MERGE THE COUNTS AT SENTENCING, AND THEN IMPOSING A CONSECUTIVE TERM FOR THE SECOND-DEGREE CONSPIRACY. (Not Raised Below).
A. Merger Of Conspiracy Convictions.
B. The Second-Degree Conspiracy Count Must Run Concurrent.
As previously noted, we affirmed defendant's convictions. With the exception of defendant's argument on merger, we rejected the foregoing claims.
On his petition for post-conviction relief, defendant argued that his trial attorney's representation was deficient in three respects: 1) failure to call K.G. as a witness; 2) failure to file motions for disclosure of the name of the State's confidential informant and suppression of the evidence seized with the warrant; and 3) failure to withdraw when communications between attorney and client broke down.
The only evidence outside the trial record defendant submitted in support of his petition was a certification from K.G. He did not submit a certification of his own or from anyone else addressing the confidential informant or his relationship with his attorney. In fact, his argument based on the breakdown of the attorney-client relationship was supported with reference to nothing other than trial counsel's remarks at sentencing, which are quoted above. And the arguments defendant's PCR counsel and counsel on this appeal set forth to establish trial counsel's deficient performance related to the identity of the confidential informant have no support in the record. Moreover, the essential step to the relief defendant sought — that trial counsel could have prevailed on a motion to suppress if he had known who the confidential informant was — rests on nothing but supposition.
Turning to K.G.'s certification, K.G. made three assertions: that he "never sold drugs for Mr. Tondee nor was employed in any capacity for him neither as a juvenile nor an adult"; "knew [defendant] very well as [they] were close friends, yet . . . never sold drugs or engaged [in] any illegal activity for him"; and, if "asked, . . . would have testified to this fact at his trial." The crime, however, does not require proof of that type of relationship or even knowing participation of the juvenile; it applies to anyone who knowingly "uses" a juvenile in violating N.J.S.A. 2C:35-5. N.J.S.A. 2C:35-6.
Judge Rose did not preside at trial, but she was assigned to defendant's PCR petition. She thoroughly reviewed the trial record, the PCR record and heard argument on the petition. Indeed, the judge provided citations to the trial record in her written decision of July 5, 2012, and she explained her reasons for denying an evidentiary hearing.
The judge noted the arguable applicability of a procedural bar based on the fact that defendant challenged his trial attorney's failure to raise the question of the confidential informant, but she addressed the merits of that claim as well as the merits of defendant's other claims. See R. 3:22-4(a), R. 3:22-5. As previously noted, she denied all relief.
On appeal defendant argues:
I. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.
II. THE LOWER COURT ORDER DENYING THE
PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
Having considered the arguments in light of the record and the law, we find that they lack sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Rose's written opinion and add only brief supplemental remarks.
In order to obtain relief from a conviction based upon ineffective assistance of counsel, the defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). Counsel's tactical decisions are entitled to great deference. Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; State v. Chew, 179 N.J. 186, 205 (2004).
Although an evidentiary hearing is often required to ascertain trial strategy, none was required here. The consistent, coherent and apparently effective strategy — after all the jury found defendant not guilty of being the leader of a narcotics trafficking network, a crime of the first degree, N.J.S.A. 2C:35-3 — was apparent from the outset. The jurors heard hours of taped conversations, but they never heard the voice of either K.G. or defendant from the witness stand. And, with defense counsel's strategy, the jurors had all the evidence available to weigh the self-interested motivations of those who implicated defendant when they considered the overwhelming evidence of defendant's involvement obtained with judicial authorization.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION