STATE OF NEW JERSEY v. RANDY STIMAGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1190-03T41190-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RANDY STIMAGE,

Defendant-Appellant.

_______________________________

 

Submitted October 24, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 02-06-2540-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Neal M. Frank, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Assistant Prosecutor, of counsel, and on the brief).

PER CURIAM

On June 28, 2002, Essex County Indictment Number 02-06-2540, charged defendant Randy Stimage with (1) two counts of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1) (Counts One and Four); (2) two counts of third-degree possession of cocaine and heroin with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (Counts Two and Five); (3) third-degree distribution of cocaine in violation of N.J.S.A. 2C:25-5a(1) and b(3) (Count Three); and (4) fourth-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5b(12) (Count Six).

A jury trial commenced on December 18, 2002, before Judge Michael L. Ravin. On December 20, 2002, the jury returned a verdict of guilty on all counts. On March 25, 2003, Judge Ravin sentenced defendant as follows:

Count One: Merge with Count 2 of this Indictment.

Count Two: Sentenced to be committed to the custody of the Commissioner of the Department of Corrections for a term of five (5) years, with twenty-four (24) months parole ineligibility. VCCB $50.00, SNSF $75.00, LAB FEE $50.00, DEDR $1,000.00. The sentence imposed on this Count is to run concurrent to the sentence imposed . . . on 3/25/03 on Counts 5 & 6 of this indictment.

Count Three: Merge with Count 2 of this indictment.

Count Four: Merge with Count 5 of this indictment.

Count Five: Sentenced to be committed to the custody of the Department of Corrections for a term of five (5) years, with twenty-four (24) months parole ineligibility. VCCB $50.00, SNSF $75.00, LAB FEE $50.00, DEDR $1,000.00. The sentence imposed on this Count is to run concurrent to the sentence imposed . . . on 3/25/03 on Counts 2 & 6 of this indictment.

Count Six: Sentenced to be committed to the custody of the Commissioner of the Department of Corrections for a term of eighteen (18) months to remain until released in accordance with law. VCCB $50.00, SNSF $75.00, LEOPA $30.00, LAB FEE $50.00, DEDR $750.00, TRANSACTION FEE $2.00. DRIVER'S LICENSE SUSPENDED for a period of eighteen (18) months. The sentence imposed on this Court is to run concurrent to the sentence imposed by Hon. Michael L. Ravin, J.S.C., on 3/25/03 on Counts 2 & 5 of this indictment.

This constituted an aggregate sentence of five years imprisonment with a twenty-four month period of parole ineligibility.

There was evidence in the record that on April 9, 2002, the East Orange police set up an undercover surveillance operation in the area of Princeton Street in East Orange, allegedly due to citizen complaints of narcotics activity in the area. The area under surveillance consisted of a row of garages and a parking lot. Michael Person was assigned to the surveillance team, as were Sergeant Timothy Bradley, Officers Phillips, Fredericks, and Austin, and other officers from East Orange and the Essex County Sheriff's Department Bureau of Narcotics. Person was dressed in plain clothes as part of the surveillance.

According to the State's evidence, at approximately 6:40 p.m., Person observed defendant sitting on a crate next to the phone booth in the area of 35 Princeton Street. Person saw a man later identified as Marc Daniels approach defendant and engage him in a conversation. Daniels then handed defendant an unknown amount of money. Defendant raised his hand for Daniels to stay where he was and then walked into an alleyway between 35 and 37 Princeton Street. Near 37 Princeton Street, defendant reached down and picked up a brown paper bag. Defendant took an item from the bag, walked back to Daniels, and handed him that item. Person believed he had just observed a narcotics sale between defendant and Daniels. Person radioed his fellow officers with a description of Daniels and the direction in which Daniels was walking. Officers Phillips and Austin received the radio transmission and proceeded to the area as directed by Person. Encountering Daniels in the parking lot of a Dunkin' Donuts located on Central Avenue between Halston Street and Princeton Street, Phillips and Austin arrested him and recovered one vial of cocaine on his person. The officers relayed this information to Person.

The police did not immediately arrest defendant because there were other individuals along Princeton Street, and Person was observing them as well as continuing to observe defendant. Later identified as Yarcia Eddington and Steven Mayerick, these individuals were subsequently arrested with narcotics. Person, however, did not see an interaction between these persons and defendant. At 7:10 p.m., Person told his officers to arrest defendant.

At the time of the arrest, defendant asked the police why he was being arrested. The arresting officer allegedly answered, "I don't know, you'll find out." According to defendant, he believed the arrest was for loitering.

After Sergeant Bradley had secured defendant, Person directed Bradley to the alleyway where he had observed defendant retrieve an item he believed to be drugs from a brown paper bag. Phillips was responsible for collecting the evidence at the scene of the arrest. Upon receipt of the items in the brown paper bag, he performed a preliminary chemical test on the items to determine if they were narcotics. Upon inspection and testing by the police, the bag was found to contain fifty-one vials of cocaine, eight decks of heroin, and six bags of marijuana.

An officer from the Bureau of Narcotics arrested Eddington and Mayerick, the two individuals Person had observed on the opposite side of Princeton Street and believed to be engaged in suspicious activity. The officer from the Bureau of Narcotics who made the arrest also recovered a paper bag containing narcotics near where Eddington and Mayerick had congregated. Eddington pled guilty to possession of drugs and testified for the defense at defendant's trial that he knew defendant but did not observe him on April 9, 2002 engaged in any illegal activity on Princeton Street. Eddington later admitted, however, that he was not really paying attention to defendant.

At trial, defendant admitted to being present on Princeton Street on April 9, 2002, but denied selling any drugs. Instead, he indicated that he was watching some individual named "Fonze" get his hair braided. Defendant also denied having gone into the alleyway between 35 and 37 Princeton Street in order to retrieve drugs, although he testified to seeing someone else go into the alley. He refused to disclose that person's identity, however, because he did not want to be a "snitch".

On appeal, defendant asserts the following:

POINT I: THE TRIAL COURT ERRED IN PERMITTING HEARSAY TESTIMONY OF DETECTIVE SERGEANT TIMOTHY BRADLEY AND DETECTIVE SERGEANT WILLIAM PHILLIPS INTO EVIDENCE. (Not Raised Below)

POINT II: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL DUE TO COUNSEL'S FAILURE TO OBJECT TO THE IMPROPER HEARSAY TESTIMONY OF DETECTIVE SERGEANT TIMOTHY BRADLEY AND DETECTIVE SERGEANT WILLIAM PHILLIPS. (Not Raised Below)

POINT III: THE TRIAL COURT SHOULD HAVE GRANTED A MISTRIAL AFTER THE PROSECUTOR ASKED THE DEFENDANT QUESTIONS WHICH RELATED TO HIS POST-ARREST SILENCE. (Not Raised Below)

POINT IV: THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL DUE TO THE PROSECUTOR'S EXCESSES IN SUMMATION. (Not Raised Below)

POINT V: THE IMPOSITION OF A PRISON TERM ABOVE THE PRESUMPTIVE TERM VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below)

POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We first address defendant's claim that testimony given by Bradley and Phillips was hearsay and therefore improperly admitted into evidence by the trial judge.

The standard of review for determining whether Judge Ravin properly admitted the testimony into evidence is plain error. Under this standard, we will not reverse an error which was not brought to the trial court's attention, unless the appellant shows plain error. R. 2:10-2. Plain error is error "clearly capable of producing an unjust result." R. 2:10-2. The plain error standard is appropriate because at the trial level defendant's counsel did not make an objection to the admission of the testimony. The issue, then, is whether it was plain error for the trial court not to have stricken the testimony given by Bradley and Phillips as hearsay on its own.

During the trial, Bradley testified that he had received a radio communication from Person advising him that the latter had just witnessed a narcotics transaction. Phillips testified that Person communicated via radio that there was an individual who had just made a narcotics purchase walking away. Person also radioed a detailed description of the individual and the direction in which the individual headed. This testimony, defendant claims, is hearsay and its admission into evidence violates the hearsay rule. N.J.R.E. 801(c) defines "'[h]earsay' . . . [as] a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." "Hearsay is not admissible except as provided by these rules or by other law." N.J.R.E. 802. Defendant argues that the testimony given by Bradley and Phillips fall under the definition of hearsay as well as fail to fall under any of the exceptions to the hearsay rule.

Defendant also claims that the admission of the testimony violates his Sixth Amendment confrontation right under the United States Constitution. He contends that admission of hearsay statements against a criminal defendant violates this Sixth Amendment right.

The State in this case contends that the testimony by Bradley and Phillips was not offered for its truth, and therefore it is not hearsay. The State claims that the officers' testimony merely was offered to explain what prompted the officers to act and not to establish that defendant was a drug dealer. Furthermore, the State argues defense counsel did not object at trial to the admission of the testimony, and in fact used the testimony to foster their misidentification defense.

Phillips testified that he received a radio communication from Person on April 9, 2002, informing him that there was an individual who had just made a narcotics purchase. Phillips also testified that Person radioed a description of that individual along with the direction he was walking. The transmission received by Phillips led to the location of that individual and the arrest of that individual - Marc Daniels.

Bradley testified to receiving the same radio communication from Person, as well as a communication relaying to him information concerning another individual who Person had observed make the narcotics transaction, and where that individual had retrieved the narcotics from - the stash location. The information received by Bradley led him to the recovery of the narcotics that defendant was later charged with possessing and selling.

"It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973) (citing McCormick on Evidence 248 (2d ed. 1972)). "Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." State v. Bankston, supra, 63 N.J. at 268.

In State v. Tarver, 272 N.J. Super. 414 (1994), police received a call from a concerned citizen that two individuals were selling drugs on a street corner. The caller gave a description to the police. At trial, the arresting officer testified to what the caller had said. On appeal, defendant challenged the admissibility of the testimony. We held that the testimony was admissible because the State only used it to show why the officers were in the location. Tarver, supra, 272 N.J. Super. at 433. The State argues this case is very similar to the facts presented here. It contends that the testimony at issue was not offered for its truth, that defendant had actually sold drugs, but to explain why Phillips approached Daniels, and why Bradley approached defendant.

Defendant vigorously asserts that such testimony was hearsay. He relies on State v. Vandeweaghe, 351 N.J. Super. 467 (App. Div. 2002), aff'd, 177 N.J. 229 (2003), to support the position that the testimony by Bradley and Phillips was inadmissible hearsay. In Vandeweaghe, the defendant appealed his murder conviction. On appeal, the defendant argued that testimony by the police relating the fact that one-half hour before the defendant's arrest the police investigated a call that reported a man was beating a woman. The man reported turned out to be the defendant who was later arrested. The State tried and convicted the defendant of the murder of that woman. We held that normally a police officer may explain the reasons he apprehended a suspect or went to a scene of the crime,

[h]owever, if "the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule." In addition, if "the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." On this appeal, the State suggests that the evidence was admissible to explain the motives of the police in approaching the couple . . . and, in addition, because it was not being offered for the truth of the matter asserted given that when the officers approached defendant and the victim, they saw no evidence confirming that a man had been beating a woman. We reject those suggestions. Simply put, the evidence suggested that a mere half hour earlier, defendant had been observed by non-testifying witnesses beating the victim. On remand, while the State may elicit evidence that the police went . . . based upon information received, it may not introduce evidence that the reason for the dispatch was a report of a man beating a woman.

[State v. Vandeweaghe, supra, 351 N.J. Super. at 484-485 (citing State v. Bankston, supra, 177 N.J. at 268, 271.) (citations omitted).]

The decisions in Bankston, Tarver, and Vandeweaghe all recognize that testimony offered to explain a police officer's subsequent conduct is not hearsay. Bankston, supra, 63 N.J. at 268; Tarver, supra, 272 N.J. Super. at 432; Vandeweaghe, supra, 351 N.J. Super. at 484-485. Despite this recognition, however, such a contention fails if the testimony offered suggests there is a non-testifying witness who implicates defendant.

In State v. Branch, 182 N.J. 338 (2005), the Supreme Court elaborated on this principle stating that:

[t]he common thread . . . is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant. [T]he officers' hearsay testimony permitted the jury to draw the inescapable inference that a non-testifying declarant provided information that implicated the defendant in the crime.

[State v. Branch, 182 N.J. at 351 (citing Bankston, supra, 63 N.J. at 271).]

The testimony in this case does not offend these principles. Person testified to what he actually observed and to what he transmitted via radio to Bradley and Phillips. There is no non-testifying witness in this case, whom the jury could have believed to have evidence of defendant's guilt.

The concerns that underlined the decision in Vandeweaghe are not present in this case. Defendant cross-examined Person at trial. Defense counsel had the opportunity to probe Person's credibility and qualifications, and to question him about what he observed with regard to defendant and Daniels. The jury in this case did not have to take the testimony of Bradley and Phillips as suggestive of defendant's guilt- Person was available and did indeed testify to what happened. The testimony of Bradley and Phillips did not leave the jury with the impression there might be an unavailable witness implicating defendant in the crime. In our view, the admission of the testimony was not improper.

Even if the detectives' testimony was hearsay and admitted erroneously, the admission of the testimony was not plain error because there is other substantial credible evidence that supports the verdict. State v. Irving, 114 N.J. 427, 447-448 (1989). The testimony of Person and the recovery of the narcotics are both credible evidence supporting defendant's conviction.

We also reject as without merit defendant's contentions that the failure of defense counsel at trial to object to the admission of the testimony of Bradley and Phillips, which defendant argues constituted hearsay, amounted to ineffective assistance of counsel.

The standard of review governing a claim of ineffective assistance of counsel is a strict one. New Jersey courts follow the rule formulated by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to show ineffective assistance of counsel, a defendant must establish that (1) counsel's performance was deficient and (2) this inadequate representation prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 6903. In State v. Fritz, 105 N.J. 42 (1987), the Supreme Court of New Jersey held that to show ineffective assistance, a defendant must identify acts or omissions allegedly showing unreasonable professional judgment, then must show that those acts or omissions had a prejudicial effect on the judgment. State v. Fritz, supra, 105 N.J. at 58.

Defendant contends that the failure of defense counsel at trial to object to the testimony of the detectives constituted ineffective assistance of counsel, because of the resulting prejudice to him.

The State contends, on the other hand, that the failure to object by defendant's trial counsel was not ineffective assistance of counsel, but instead part of trial counsel's defense plan. The State contends that trial counsel's defense strategy was a misidentification defense, and that the alleged hearsay actually aided this defense. The State argues that defense counsel wanted to highlight the fact that defendant, Daniels, Eddington, and Mayerick were all wearing similar clothing at the time of the arrest, to suggest the police were confused and mistaken when they arrested defendant.

Our Supreme Court held in Fritz, that:

[U]nder Article I, paragraph 10 of the State Constitution a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated.

[State v. Fritz, supra, 105 N.J. at 58.]

To determine if trial counsel's failure to object constituted ineffective assistance of counsel we must examine whether such failure equals deficient performance. As previously discussed, the testimony by Bradley and Phillips did not violate the hearsay rule; therefore, defense counsel's failure to object did not constitute a deficiency in representation.

Even assuming, arguendo, that defendant is right in his contention that the detectives' testimony amounted to hearsay, and that defense counsel's failure to object to its admission constituted defective representation by counsel, this does not mean it met the standard for establishing ineffective assistance of counsel. Even if the failure of defense counsel to object may have constituted deficient counsel, the representation was not so inadequate as to prejudice defendant. Strickland, supra, 466 U.S. at 687. In this case, the evidence of defendant's guilt was substantial. The recovery of the narcotics and the testimony by Person sufficiently and substantially supported a guilty verdict. Therefore, the admission of the testimony did not prejudice the defense enough to warrant a reversal.

We have carefully considered, in light of the record and the applicable law, each of defendant's remaining contentions on appeal. Because we are satisfied that none of those contentions is of sufficient merit to warrant discussion in a written opinion, we affirm in all respects, with the following exception concerning the sentence imposed. R. 2:11-3(e)(2).

We note that defendant contends the trial judge based his sentencing decision on a fact finding process conducted by the Court, and not the jury, thereby violating the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

On review of a sentencing decision, we must:

[(1)] [A]lways require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence. . . . [(2)] [R]equire that the fact finder apply correct legal principles in exercising its discretion. . . . [and] [(3)] [E]xercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience.

[State v. Roth, 95 N.J. 334, 363-364 (1984).]

The standard governing sentencing review set forth in Roth remains unchanged even in light of the New Jersey Supreme Court's recent sentencing decision in State v. Natale, 184 N.J. 458, 489 (2005).

Defendant contends that in the wake of the United States Supreme Court decision in Blakely, supra, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, the trial court's decision to sentence him in excess of the statutory presumptive range of the New Jersey Criminal Code violated his Sixth Amendment rights under the United States Constitution. Defendant argues that the jury was required to find beyond a reasonable doubt the aggravating factors that increased defendant's sentence beyond the presumptive term.

The State argues that the failure of defendant to challenge the constitutionality of his sentence on Sixth Amendment grounds in the trial court bars defendant from raising the issue on appeal. While it is true that on appeal the appellate court will not consider issues not raised below, even constitutional ones, the appellate court can review an issue not raised below when it substantially implicates the public interest. Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973). Furthermore, an appellant may raise an issue if it is essential to "'bringing about an impartial and expeditious determination of the essential merits of the issues . . .'" Pressler, Current N.J. Court Rules, comment on R. 2:6-2 (2005) (citing Floyd v. Morristown European Motors, Inc., 138 N.J. Super. 588, 592 (App. Div. 1976)). Defendant's claim that his sentence violates the Supreme Court of the United States' decision in Blakely is essential in determining whether reversal or modification of defendant's sentence is necessary.

Additionally, the State argues that defendant's sentence falls within the boundaries established by Blakely, supra, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 as well as Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Since the sentencing of defendant and the filing of this appeal, the Supreme Court of New Jersey has ruled on whether the Supreme Court of the United States decision in Blakely impacts the New Jersey Criminal Code and its sentencing guidelines. State v. Natale, supra, 184 N.J. 458. In Natale, the Supreme Court held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale, supra, 188 N.J. at 466.

The Supreme Court ultimately concluded that the New Jersey "'statutory maximum' for Blakely and Booker purposes is the presumptive sentence. . . . [and held that] the Code's system of presumptive term sentencing violates the Sixth Amendment's right to trial by jury. Id. at 484.

In announcing the elimination of the presumptive term, the Supreme Court mandated that with regard to sentencing decisions," judges will continue to balance aggravating and mitigating factors, [but] they will no longer be required to do so from the fixed point of a statutory presumptive." Natale, supra, 184 N.J. at 487.

The presumptive term for third degree possession of C.D.S. in New Jersey at the time of defendant's sentencing was four years. N.J.S.A. 2C:44-1f(1)(d). The trial judge sentenced defendant to a five-year term with a twenty-four month parole disqualifier based on his finding of aggravating factors. The New Jersey Criminal Code, prior to the decision in Natale allowed the sentencing judge to consider whether there existed aggravating or mitigating factors, and then balance them, in order to determine whether to impose a greater or lesser sentence than the presumptive term. N.J.S.A. 2C:43-6b. The factors used here by the court were (3) the risk that defendant will commit another offense; (6) the extent of defendant's prior criminal record; and (9) the need for deferring defendant and others from violating the law.

According to the Supreme Court's observations in State v. Abdullah, 184 N.J. 497 (2005), it does not violate the Blakeley/Natale sentencing strictures if the sentencing judge increases a custodial term above the presumptive on the basis of aggravating factors 3, 6 and 9, which it considered to relate to a defendant's "prior convictions." Id., at 497, n.2. See N.J.S.A. 2C:44-1(a). The difficulty in Abdullah was that the trial court there also applied a further mitigating factor, (1)"the nature of the offense," which was not deemed related to defendant's "prior convictions." By contrast, in the present case, the trial judge limited its finding of aggravating factors to 3, 6 and 9. Thus, under Abdullah there was no Blakeley/Natale error in which the trial court utilized aggravating factors other than those that related solely to defendant's prior convictions, and there is no basis thereunder for us to interfere with the sentence imposed.

 
Affirmed.

(continued)

(continued)

21

A-1190-03T4

November 22, 2005