STATE OF NEW JERSEY v. DANIEL MORGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1927-03T41927-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL MORGAN,

Defendant-Appellant.

___________________________________

 

Submitted September 25, 2006 - Decided October 20, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County,

02-02-0155.

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

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant, Daniel Morgan, was convicted of second-degree possession of a .357 caliber Taurus revolver while having been convicted of the crime of trafficking in cocaine in Delaware, N.J.S.A. 2C:39-7b, and fourth-degree possession of a knife while having been convicted of the crime of trafficking in cocaine in Delaware, N.J.S.A. 2C:39-7a. On March 21, 2003, the trial judge granted the State's motion for an extended term, N.J.S.A. 2C:44-3a, and imposed a fifteen-year term with five years of parole ineligibility on the possession of the handgun conviction. A nine-month concurrent term was imposed on the possession of the knife conviction. Defendant filed a notice of appeal.

While this appeal was pending, defendant filed a petition for post-conviction relief, contending that his sentence was illegal. Thereafter, defense counsel filed a similar motion to correct the sentence, pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Argument on the motions was heard by the trial judge on October 21, 2004. On December 3, 2004, the judge announced his decision from the bench, denying defendant's applications. We now affirm the judgment of conviction but remand for resentencing.

The following relevant facts were adduced at trial. On September 1, 2001, Officer Robert Lillo, a seven-year veteran of the Wildwood Police Department, received a call while on patrol to assist as backup to Patrolman McChafrey. McChafrey had received a report of a man with a gun in the 100 east block of Garfield Avenue. Descriptions were given of the two suspects, one a male and the other a female. The two suspects were reportedly traveling together in a silver colored SUV, possibly a Chevy Tracker, "four-door, with a lot of luggage in the rear compartment of it."

Lillo located both suspects walking in the 200 east block of Roberts Avenue. The SUV was in the same general vicinity. Lillo and Lieutenant William A. Cooper decided to conduct "a high risk stop due to one of the accused possibly having a gun." They drew their weapons and ordered the suspects to turn away and put their hands on the wall to facilitate a pat down for weapons. No weapons were found on the suspects. The male was identified as defendant, and the female as Shalista Ann Small.

After Cooper explained why the officers were there, defendant stated that he had been "involved in a small altercation on Garfield Avenue." Defendant told Cooper that he owned the SUV. Lillo confirmed ownership by having the plates run through the dispatch computer. After running the check, Lillo exited his vehicle, looked into the driver's side front window, and noticed a gun in plain view. Cooper secured the keys from defendant and the SUV was searched.

In addition to the gun, the search uncovered a black pouch with ammunition in it, a silver folding knife inside the driver's side door compartment, and a bag containing more boxes of ammunition in one of the pieces of luggage. A receipt was also found, evidencing the purchase of ammunition from a Delaware Wal-Mart store, two days earlier, on August 30, 2001. The .357 caliber Taurus revolver was fully loaded. One out of six boxes of ammunition contained cartridges that fit the weapon. It was determined that the items found did not need to be fingerprinted at the scene because they were located in defendant's vehicle. However, subsequent testing of the evidence revealed no identifiable fingerprints.

Defendant and Small were placed under arrest and taken to police headquarters. An ATF trace revealed that the lawful owner of the weapon was James E. Godfrey, a resident of Seaford, Delaware. Godfrey purchased the gun on December 10, 1996. At trial, Detective Robert T. Lee, a detective employed by the Delaware Attorney General's Office, testified that he found a link between defendant and the gun, indicating that a woman named Charlotte Cannon was known to have stayed at Godfrey's house on occasion.

Cannon testified that she had known defendant for five and a half years and first met him at a drug program where he was her program director. At the time of the trial, Cannon was residing with defendant. She stated that defendant never owned a gun. Cannon indicated that she had a relationship with Godfrey when she was a prostitute and drug addict, but had not seen him since October 30, 1996. Finally, Cannon testified that she never took a gun from Mr. Godfrey.

Defendant gave the following testimony. On August 31, he received a phone call from Small regarding problems Small was having with her boyfriend, Alan Evans. Small asked defendant to leave Delaware and come to New Jersey to pick up her and her eight-year-old daughter and take them to Maryland. Believing that Small and her daughter were subject to a "violent situation," defendant agreed to pick her up. Defendant arrived in Wildwood, New Jersey after 8:00 p.m. that evening, stayed with Small in her hotel room, and made plans to pick up her daughter from a friend's home the next morning.

At approximately 7:30 a.m., defendant and Small left their room and began to proceed to Small's home where she lived with Evans. While en route, Small pointed out Evans, who was in the company of two other individuals. Defendant stopped the vehicle, exited, and spoke with Evans. According to defendant, the conversation lasted "about a minute," after which he returned to his vehicle and proceeded to Small's home. Defendant parked in front of Small's house and both he and Small began gathering and packing Small's and her daughter's personal items. They made three or four trips between the house and the SUV, during which time the doors remained unlocked. Defendant claimed that while they were loading the vehicle Evans was in the area. Defendant admitted that inside his vehicle, in addition to Small's belongings, there was a "garment bag" that belonged to him and contained "a couple of dungaree suits

. . . a suit to wear on Sunday and some shoes, [and] boots." After they delivered some of Small's things to friends, they decided to get breakfast. It was at this point in time that defendant parked his car on Roberts Avenue. Both he and Small got out of the car and locked the doors. Defendant denied ever seeing the boxes of ammunition, the knife, or the gun. He did not know how they got into his car.

On appeal, defendant raises the following points:

POINT I

THE REFUSAL OF THE TRIAL COURT TO GRANT THE REQUEST OF THE DEFENSE FOR AN ADJOURNMENT OF THE TRIAL DATE WAS AN ABUSE OF DISCRETION WHICH RESULTED IN DEFENDANT BEING DEPRIVED OF THE RIGHT TO A FAIR TRIAL.

A. THE RECORD DOES NOT SUBSTANTIATE DEFENSE COUNSEL'S CLAIM THAT DEFENDANT DID NOT PARTICIPATE IN HIS DEFENSE THEREBY PRECIPITATING A MOTION TO BE RELIEVED.

B. THE FAILURE TO GRANT DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT DEPRIVED DEFENDANT OF A FAIR TRIAL AND WAS AN ABUSE OF DISCRETION WARRANTING REVERSAL.

C. THE TRIAL COURT'S DECISION TO ALLOW AN INDISPENSABLE WITNESS TO LEAVE THE COURTROOM WITH KNOWLEDGE OF OUTSTANDING WARRANTS AGAINST HER CONSTITUTED PLAIN ERROR WARRANTING REVERSAL.

POINT II

THE EFFECT OF CUMULATIVE TRIAL ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL.

POINT III

THE COURT BELOW VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION IN IMPOSING AN EXTENDED TERM SENTENCE UPON DEFENDANT.

A. THE EXTENDED TERM SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.

B. THE DEFENDANT WAS IMPROPERLY DESIGNATED A PERSISTENT OFFENDER AND THE EXTENDED TERM OF INCARCERATION WAS THEREFORE ILLEGAL AND IMPROPER.

POINT IV

THE COURT ERRED IN DETERMINING THAT DEFENDANT WAS NOT ENTITLED TO BE CREDITED WITH ANY MITIGATING FACTORS.

We address these issues seriatim. In September 2002, defendant's original attorney was relieved from representing defendant based upon counsel's assertion that defendant failed to cooperate or communicate with her. On December 20, 2002, new counsel agreed to represent him. The trial date was set for January 27, 2003.

On January 27, 2003, defendant's new counsel moved to be relieved as counsel or, alternatively, obtain a six-week extension. Counsel argued that, despite his attempts to reach defendant approximately a dozen times, he was not adequately prepared to move forward with the trial due to lack of contact and communication with defendant. Noting that counsel was the second attorney who had indicated that defendant refused to participate in his own defense, the judge asked counsel to give him a good reason why he should grant him relief and let defendant proceed on his own. Counsel indicated that defendant did not want him relieved as counsel. Later that day counsel withdrew his motion and agreed to proceed.

The defense planned to call Small, who voluntarily appeared on the second day of trial, to testify on defendant's behalf. The State advised the judge that Small had two outstanding warrants for her arrest. The State asked the judge to allow Small to remain on the street, not execute the warrants, and instruct her not to leave the courthouse. The judge told Small that he did not want to execute the warrants and arrest her before she testified. He explained that he did not want the jury to see she was in custody because it might adversely affect the weight the jury might give to her testimony. The judge discussed the nature of the warrants, one based on a failure to appear in Maryland, and two others for failure to pay fines. He then told Small that execution on the warrants would "abide [her] testimony" and therefore she was "under a restrictive order" of the court not to leave the courthouse, and that they would reconvene at 1:30 p.m. Defense counsel did not object to the procedure. Despite the judge's order, Small did not return after lunch and was held in contempt. After Cannon's and defendant's testimony was completed, the judge excused the jury and permitted the defense additional time to locate Ms. Small overnight. However, Small was never located, and the following morning the defense rested.

Defendant acknowledges in his Point I argument that his attorney withdrew the motion and agreed to proceed with the case. Indeed, defendant asserts in his appellate brief that he received ineffective assistance of counsel because his trial attorney failed "to follow through on the strategy until four

. . . days before the beginning of the scheduled trial date" by not locating witnesses, obtaining statements, deposing the purported owner of the gun or "subpoena[ing] the individual that Defendant had every reason to believe planted the gun."

Defendant's claims of ineffective assistance of counsel are contradicted by the statements in the record by defense counsel that he initiated his motion because of defendant's failure to cooperate and return phone calls. Similarly, the record reflects that defendant admitted that, despite over one month's notice of the scheduled trial, he had not provided his counsel with requested information until the Friday before the Monday trial date, thus bespeaking lack of diligence on his part. The allegations respecting counsel's alleged deficiencies, as well as proof that a certain witness would have exculpated defendant, necessarily involve factual assertions and evidence beyond the trial record. They are best addressed on an application for post-conviction relief. State v. Preciose, 129 N.J 451, 459-60 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). We, therefore, forgo further consideration.

Defendant asserts on appeal that the judge's refusal to adjourn the case deprived him of a fair trial. Ordinarily, we do not interfere with a trial judge's denial of a request for an adjournment unless it appears that an injustice has been done. Nadel v. Bergamo, 160 N.J. Super. 213, 218 (App. Div. 1978). The decision to grant an adjournment is left to the sound discretion of the trial judge. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). Denial of a request for an adjournment does not constitute reversible error absent an abuse of discretion. Ibid. The judge never actually ruled on counsel's motion because it was withdrawn. The withdrawal of defendant's motion for an adjournment was predicated on counsel's concession that he could be ready to proceed with his case if he secured Small and Cannon as witnesses. Indeed, both witnesses were present in the court on the second day of trial. Whether defense counsel's concession represented ineffective assistance of counsel is dependent on whether additional witnesses were available and whether their testimony would have helped defendant. Again, those issues are beyond this record and not cognizable on this appeal.

Defendant next claims that the judge committed plain error by allowing Small to leave the courtroom after advising her that she would be arrested on the outstanding warrants after she testified. Defendant argues that Small should have been put under arrest. "The appearance of a defense witness in restraints undermines the credibility of the testimony that witness offers on the defendant's behalf." State v. Artwell, 177 N.J. 526, 536 (2003) (citations omitted). "[T]he danger lies 'not merely in the fact that the jury may suspect that the witness committed a crime,' but in 'the inherent psychological impact' that restraints will have on the jury's assessment of credibility." Id. at 536-37 (quoting Williams v. State, 629 P.2d 54, 57-58 (Alaska 1981)). The judge showed appropriate concerns about arresting Small and restraining her from leaving, and expressed them on the record.

"Judicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954) (citing Hoffman v. Maloratsky, 112 N.J. Eq. 333 (E. & A. 1933); Hager v. Weber, 7 N.J. 201 (1951)). The exercise of judicial discretion "depend[s] very largely on the 'feel' of the case which the trial judge has at the time." Greenberg v. Stanley, 30 N.J. 485, 503 (1959). It is necessary for us to review "the circumstances amid which [a judge's] determination was rendered" in considering whether it was a reasonable and just exercise of discretion. Amo v. Genovese, 17 N.J. Super. 109, 112 (App. Div. 1951), certif. denied, 9 N.J. 181 (1952).

The colloquy with Small left the judge with the impression that she would comply with his request not to leave the courthouse. In fact, Small expressly answered "Okay" each time she was asked whether she understood and agreed to the execution of the warrant after her testimony and her being restricted to the courthouse. The judge had no reason to believe she would leave. The judge was duty bound to tell Small the truth about her circumstances. The judge noted for the record that the interaction in the courtroom between Small and defendant evidenced an apparent friendship. If defendant had any inkling that Small would not return, he should have advised counsel. It can be inferred from counsel's failure to object that, like the judge, defendant expected Small would be present after lunch. We are satisfied that the judge did not abuse his discretion by failing to place Small in custody under those circumstances. Our determination renders moot defendant's next contention that the judge's reluctance to grant an adjournment and his failure to confine Small represented cumulative plain error.

We address the multiple contentions raised concerning the sentence imposed. The State's motion for an extended term did not expressly mention defendant's 1985 New York conviction for possession of a weapon for which he received a five-year suspended sentence. At sentencing on March 21, 2003, however, the State argued that the 1985 conviction was part of defendant's prior criminal record, which also included a 1992 qualified New York conviction for resisting arrest that was conditionally discharged, and a 1995 Delaware conviction for trafficking in cocaine. At sentencing, defense counsel acknowledged the weapons conviction as well as the other charges, and that defendant qualified for persistent offender status pursuant to N.J.S.A. 2C:44-3a. Moreover, both counsel and defendant agreed that the presentence report, which included the weapons conviction, was accurate. After reviewing the presentence report, the judge determined that defendant was a persistent offender. Defendant then presented several witnesses who testified concerning his efforts to turn his life around and contribute to society. The judge found aggravating factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors, and imposed a presumptive term of fifteen years, N.J.S.A. 2C:43-7d, and the mandatory minimum five-year period of parole ineligibility, N.J.S.A. 2C:39-7b.

Denying defendant's subsequent motions to correct the sentence, the judge found that defendant qualified as a persistent offender in view of the New York weapons conviction without consideration of the intervening resisting arrest conviction. Defendant's contention that the judge improperly relied on the 1992 conditional discharge is not supported by the record. The record sufficiently reflects that the judge was presented with and properly considered the earlier weapons conviction.

Although acknowledging in his appellate brief that he had "the requisite prior convictions and was eligible for sentencing" as a persistent offender to a discretionary extended term under N.J.S.A. 2C:44-3a, defendant argues that the imposition of an extended term sentence was illegal under Blakely, supra, 542 U.S. at 296, 124 S. Ct. at 2531, 159 L. Ed. 2d at 403, and State v. Natale (Natale II), 184 N.J. 458 (2005). He argues that the imposition of an extend term violates his Sixth Amendment rights because it is based on factors other than prior convictions. He maintains that he is, therefore, entitled to a remand for resentencing "to no more than the presumptive ordinary term," or seven years. He also asserts that the judge erred in disregarding the mitigating factors.

In State v. Pierce, 188 N.J. 155, 162-63 (2006), the Court determined that, like mandatory enhanced sentences under N.J.S.A. 2C:43-6f, a sentencing court's objective consideration that a defendant's prior record qualifies him as a persistent offender is not violative of the Sixth Amendment. See also State v. Thomas, 188 N.J. 137, 151-52 (2006). The Pierce Court addressed those considerations required for imposing a discretionary extended term sentence, so as to pass constitutional muster under Blakely. It observed that, prior to Blakely and Natale II, it was necessary for a sentencing court to determine if an extended term was necessary in order to protect the public under State v. Dunbar, 108 N.J. 80 (1987) and State v. Pennington, 154 N.J. 344 (1998). Recognizing that the determination of the "need to protect the public" represented "a finding beyond the pure fact of the prior conviction," the Court held that a sentencing court is now required to determine first whether a defendant's prior record qualifies that defendant for a discretionary extended term. Pierce, supra, 188 N.J. at 169. Then, the sentencing court must make a "separate and distinct" determination of the sentence to be imposed, "start[ing] at the minimum of the ordinary-term range and end[ing] at the maximum of the extended-term range." Ibid. In reaching the sentence, the court is to assess "the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public." Ibid.

Here, the judge did not make any findings respecting the need to protect the public. Moreover, in light of the new "expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range," we must remand for resentencing in accordance with Pierce. Id. at 171. On remand, defendant may not be subject to a sentence above the sentence previously imposed. Id. at 174 (citing Natale II, supra, 184 N.J. at 496). Further, on remand, the sentencing judge should reconsider the mitigating factors as well as the need to protect the public as they apply to a sentence beginning at the bottom of the range of the ordinary term (five years) and extending, in this case, to the presumptive fifteen-year term previously imposed.

We remand for resentencing in accordance with this opinion. In all other respects, the judgment of conviction is affirmed. We do not retain jurisdiction.

 

(continued)

(continued)

17

A-1927-03T4

 

October 20, 2006