STATE OF NEW JERSEY v. MICHAEL DERRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6227-03T46227-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL DERRY,

Defendant-Appellant.

___________________________________

 

Argued March 14, 2006 - Decided April 3, 2006

Before Judges Skillman and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-03-0512.

Jean M. Hartmann, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, Ms. Hartmann, of counsel and on the brief).

Jack J. Lipari, Assistant Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of possession of heroin, in violation of N.J.S.A. 2C:35-10a(1); possession of heroin with the intent to distribute, in violation of N.J.S.A. 2C:35-51a(1) and N.J.S.A. 2C:35-5b(3); distribution of heroin, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); possession of heroin within 1,000 feet of school property with the intent to distribute, in violation of N.J.S.A. 2C:35-7; distribution of heroin within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7; possession of heroin within 500 feet of a public housing facility with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1; and distribution of heroin within 500 feet of a public housing facility, in violation of N.J.S.A. 2C:35-7.1. The trial court sentenced defendant to a ten-year term of imprisonment, with five years of parole ineligibility, for distribution of heroin within 500 feet of a public housing facility, and a concurrent five-year term, with three years of parole ineligibility, for distribution of heroin within 1,000 feet of school property. The court also imposed the statutorily mandated penalties, assessments and fees and suspension of defendant's motor vehicle license. The court merged defendant's other convictions.

Defendant's convictions were based primarily on the testimony of Investigator Richie King, an undercover investigator in the Division of Criminal Justice. Investigator King testified that on February 21, 2003, he went to the Stanley Homes Village, an apartment complex in Atlantic City, posing as a person who wanted to buy heroin. About fifteen seconds after he arrived, a person who identified himself as Poodaroo walked up to King and said, "What are you looking for?" King responded, "diesel," which is a street name for heroin. Poodaroo, who was subsequently identified as James Turner, told King: "I can hook it up. Give me a minute." Turner then walked to 231 Rosemont Place, knocked on the door, and after it was opened, walked inside. About thirty seconds later, Turner walked out the door and said, "Yo, come on over."

King went inside the downstairs entry to the apartment, where he was met by a man who said, "What are you looking for? What do you want?" King responded, "diesel four," which meant four bags of heroin. The man then walked up the stairs and another man, who King subsequently identified as defendant, came down the stairs. This man said, "What you need?" King responded "four diesel," and said he would pay "fifty-five." The man said, "Nah, sixty," meaning $60, which King agreed to pay. The man handed King four little plastic bags, with the words "Dirty Love" marked on them, which were subsequently determined to contain heroin, and King gave him $60. At this point, Turner, who had been standing behind King during this transaction, said: "I made a deal for you. You know, can I at least get one?" The man agreed and gave Turner a single plastic bag. King asked what to call the seller if he wanted to come back for more drugs. The seller responded "M." King then left the apartment.

Later that day, King identified defendant from a photo array as the person who had sold the four bags of heroin to him. King also identified defendant as the seller at trial.

Defendant's defense to the charges was misidentification. Defendant claimed that the actual seller was his cousin, Kamall Sears, who allegedly looked a lot like him. In a letter to the prosecutor as part of the pretrial discovery in the case, defense counsel stated:

Mr. Derry's defense is very simply one of a mistaken identification of him for his cousin, Kamall Sears, who appears willing to testify to same at trial contrary to his own penal interest and right against self-incrimination. In corroboration of his anticipated testimony, I intend to call James Turner and Leslie Gadson. Mr. Turner was the intermediary who introduced the undercover agent to the mysterious "M" inside the residence while Ms. Gadson and her younger daughter, Deshiva (a cousin to Kamall Sears), can attest to Sears' access to and frequent visits to that residence.

At a pretrial conference, the prosecutor asserted that defendant's proposed witnesses would be incriminating themselves by testifying on his behalf and therefore they "have the right to have counsel present and be advised of their Miranda warnings." The trial court agreed with the prosecutor and stated that counsel would have to be assigned to the proposed defense witnesses to advise them concerning their exposure to criminal prosecution for any admissions they made while testifying on defendant's behalf. Consistent with this ruling, the court subsequently assigned counsel to represent each of the proposed defense witnesses and also warned them on the record that they could incriminate themselves by testifying on defendant's behalf. After receiving those warnings and conferring with counsel, Turner indicated that he would invoke his privilege against self-incrimination if called to testify. However, despite the warnings and contrary to the advice of counsel, both Sears and Gadson testified on defendant's behalf.

Sears testified that he was the person who was selling drugs out of Gadson's apartment at 231 Rosemont Place, although he could not remember whether he sold drugs on February 21, 2006. He also testified that Turner brought prospective drug purchasers to the apartment. Sears stated that he and defendant are cousins and that they are frequently mistaken for each other. He further testified that defendant was not present at the Gadson apartment on any occasion when he sold drugs.

Leslie Gadson testified that she resides in the apartment at 231 Rosemont Avenue. According to Gadson, Sears is her daughter's cousin and used to spend a significant amount of time in her apartment. However, she never saw defendant there. Gadson also testified that Sears uses the street name "M," and that she had never heard anyone refer to defendant as "M." Gadson said there is a close physical resemblance between Sears and defendant and that mistakes had been made telling the two apart.

After defendant was found guilty by the jury based on this evidence, defendant moved for a new trial on various grounds including that the trial court "erred in assigning court-appointed legal counsel to the intended primary defense witness, James C. Turner, and in otherwise advising him profusely of his privilege against self-incrimination and thus encouraging him to refuse to testify in the defendant's behalf." In rejecting this argument and denying defendant's motion for a new trial, the trial court stated:

[T]he fact that I allowed Mr. Turner to meet with an attorney I find to be appropriate. In fact, I personally would be absolutely appalled and shocked if an appellate court came back to me and said, Judge, you shouldn't have done that, you should have just let the guy sink himself and let himself go down for five years. That would really be trampling on his rights, and . . . that man has the same rights as [defendant]. [Defendant] doesn't have a right just to trample on his rights to get himself out of a squeeze or tight situation.

On appeal, defendant presents the following arguments:

I. DEFENDANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND COMPULSORY PROCESS BY THE TRIAL COURT AND PROSECUTOR'S THREATENING/INTIMIDATING WARNINGS TO DEFENSE WITNESSES REGARDING THEIR FIFTH AMENDMENT RIGHTS TO REMAIN SILENT AND THE LIKELIHOOD AND CONSEQUENCES OF PROSECUTION IF THEY TESTIFIED AS WELL AS THE OFFER AND APPOINTMENT OF COUNSEL FOR JAMES TURNER (U.S. Const. Amend. V, VI, XIV; N.J. Const., Art. I, Par. 1, 10)

II. PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, Par. 10) (Partially Raised Below).

III. DEFENDANT'S SENTENCES WERE IMPROPER (Not Raised Below).

i. Defendant was denied his constitutional rights to trial by jury and findings based upon proof beyond a reasonable doubt when the trial court sentenced him to a greater than presumptive sentence with a maximum period of parole ineligibility (U.S. Const. Amend. V, VI, XIV; N.J. Const. Art. I, Pars. 8, 9, 10, 11)

ii. The trial court erred in its findings of aggravating factors.

iii. The trial court failed to merge the third-degree distribution of CDS in a school zone into second-degree distribution of CDS in a public housing property.

We agree with defendant's contention that the trial court improperly interfered with his right to call Turner as a defense witness by emphatically warning him that he could incriminate himself by testifying for defendant and assigning him counsel to advise him concerning the self-incriminatory consequences of his proposed testimony. Therefore, defendant's conviction must be reversed and the case remanded for a new trial. This conclusion makes it unnecessary to consider defendant's other arguments.

In State v. Jamison, 64 N.J. 363 (1974), the trial court was advised that a proposed defense witness would testify that he, and not defendant, had committed the atrocious assault with which defendant was charged. Although defense counsel told the court that the witness had been advised of his rights, the court questioned the witness at length regarding his awareness that his proposed testimony could be used against him in subsequent proceedings and the length of the sentence he could receive if he were found guilty. After conferring with a public defender assigned to advise him, the witness denied any involvement in the crime and indicated he would claim his privilege against self-incrimination if called to testify. The Court concluded that the trial court's statements to the prospective defense witness, leading to the retraction of his proposed exculpatory testimony, constituted a denial of defendant's due process right to a fair trial. The Court stated:

[T]he wise judicial course would have been, and ordinarily will be, to leave the matter of suspicion of criminality attendant upon the actions of the prospective witness to the prosecutor, for such attention at the conclusion of the case as he might deem warranted.

[Id. at 376.]

See also State v. Johnson, 223 N.J. Super. 122, 127-34 (App. Div. 1988), certif. denied, 115 N.J. 75 (1989).

In State v. Feaster, 184 N.J. 235 (2005), a key prosecution witness in a capital case recanted his trial testimony. Defendant filed a petition for post-conviction relief based partly on that statement. However, before the witness testified at the hearing on the petition, the prosecutor told the witness's attorney that there would be "considerations" if his client testified consistent with his recantation statement. Id. at 240. Thereafter, the witness withdrew his certified statement and invoked his privilege against self-incrimination. Ibid. The Court held that the prosecutor's statement to the witness's attorney constituted a "thinly veiled threat to prosecute [the witness] for perjury if he testified in defendant's favor" and that such "interference with that witness's decision to testify violated defendant's state constitutional due process and compulsory process rights." Ibid. In reaching this conclusion, the Court stated:

The State has no affirmative duty to tell a witness, subpoenaed by the defense, that he could be prosecuted if his testimony is different from his previously sworn testimony and inconsistent with the State's theory of the case.

. . . .

. . . [I]t is not the function of the State to save a defense witness from himself or to spare the court a supposed falsehood, at the expense of denying the court critical testimony.

[Id. at 258-59.]

The Court also said that it could not "speculate that the witness would have invoked his Fifth Amendment privilege regardless of the State's threat[,]" and therefore, it "must presume that the . . . prosecutor's threat made the witness unavailable to testify." Id. at 261. As a remedy for the prosecutor's violation of defendant's constitutional rights, the Court gave the State the option either to grant the witness testimonial immunity at the remand hearing on the petition for post-conviction relief or to have the trial court disregard the witness's trial testimony in reviewing defendant's petition and determine whether the absence of that testimony would raise a reasonable doubt as to defendant's guilt, in which event defendant would be entitled to a new trial. Id. at 263-64.

When Turner was brought to court to testify on defendant's behalf, the trial court gave him strong warnings concerning his exposure to criminal prosecution for such testimony and offered to provide an attorney to advise him:

Q. Your name has been given to us by

. . . the attorney for Mr. Derry.

A. Yes.

Q. And as such, before anyone can question you, including myself, I'm under an obligation to advise you of your Fifth Amendment rights.

A. Right.

Q. And I know from what I've been told by counsel you have a series of convictions, something like ten of them, so I know you've been in court a lot and I know you've been in the system a lot.

A. Right.

Q. And as you probably know, you have an absolute right to always remain silent and keep yourself from being involved in a case, particularly a case in which you're not yet a defendant. You also have a right, if you wish, to testify, but if you do testify you could be subjecting yourself to further indictment. In other words, if you were to testify, for example, that you helped arrange a drug deal on such and such date and that you were a part of that transaction insofar as leading a seller to a prospective buyer, obviously the prosecutor could wind up indicting you for either conspiracy or accomplice liability in arranging the drug sale. And because this drug sale allegedly occurred within 500 feet of a public zone, you could be exposing yourself to - yourself to up to ten years in state prison tacked on to whatever you're already serving. Do you understand that, sir?

A. Yes.

Q. Okay. Before you testify in this matter, or before I ask you anymore questions do you want to consult with an attorney before making your decision?

A. Yes, I want to consult with an attorney.

Q. Okay. Now obviously you have no attorney here with whom you've arranged to represent you, right?

A. Right.

. . . .

Q. Okay, We're going to have to try to get someone to speak with you, and I don't know how we're going to do that because the attorney for Mr. Derry didn't arrange anything here. We're the ones who writted you here. . . . We're the ones who are now arranging for an attorney to meet with you, but it's probably not going to be until tomorrow morning . . . .

. . . .

Q. Let me also explain to you, because I think it would be appropriate if I explained to you that thus far there has been testimony in this case that a Poodaroo, someone known as Poodaroo approached an undercover operative, introduced that undercover operative to a seller of heroin, and there was a sale made. If you were to indicate, for example, that you were Poodaroo and you arranged for that contact between the ultimate seller and the ultimate buyer, you could be subjecting yourself, and most likely would be subjecting yourself to the Prosecutor's Office indicting you, the detective, or undercover operative I should say, later identifying you possibly as the person who arranged the transaction, and based on your testimony and the identification subjecting yourself to prosecution for conspiring to distribute CDS. Do you understand that, sir?

A. Hmm. Yes, I do.

After conferring with the attorney the court assigned to him, Turner invoke his privilege against self-incrimination and declined to testify as a defense witness.

The trial court's warnings to Turner concerning the risk he would incriminate himself by testifying for defendant and the assignment of counsel to advise him about this risk violated defendant's rights to due process and compulsory process, as interpreted in Jamison and Feaster. The trial court did not simply seek to ascertain whether Turner, who was incarcerated at the time, was appearing voluntarily as a defense witness. Instead, the court informed Turner that a person known as Poodaroo had been identified as an accomplice in the sale of drugs to an undercover police officer, and if he testified that he was that accomplice, he would be "subjecting [himself] to prosecution for conspiring to distribute CDS." The court also told Turner that "because this drug sale allegedly occurred within 500 feet of a public zone, you could be exposing yourself . . . to up to ten years in state prison tacked on to whatever you're serving." In addition, the court informed Turner that "you have an absolute right to always remain silent and keep yourself from being involved in a case[.]" These warnings from the trial court to Turner concerning the potential self-incriminating consequences of testifying for defendant were more intimidating than the prosecutor's oblique reference to "considerations" if a potential witness testified for the defense that the Court in Feaster found to violate the defendant's due process and compulsory process rights under the New Jersey Constitution.

It is of no significance that the trial court rather than the prosecutor was the source of these warnings. In fact, the trial court was the source of warnings to potential defense witnesses about the risk of self-incrimination that were found to have violated the defendants' right to due process and compulsory process in Jamieson, supra, 64 N.J. at 369, 376-77, Johnson, supra, 233 N.J. Super. at 127-34, and State v. Vassos, 237 N.J. Super. 585, 588-94 (App. Div. 1990).

Moreover, we are unable to conclude that the trial court's warnings to Turner and assignment of counsel to advise him concerning the potential self-incriminatory consequences of testifying for defendant was harmless error. As in Feaster, we must "presume" that the court's warnings to Turner caused him to invoke his privilege against self-incrimination and made him "unavailable to testify" on defendant's behalf. Although Sears testified that he, and not defendant, was the one who sold drugs from Gadson's apartment, his credibility was seriously impaired by cross-examination that elicited his admission that he had testified at a pretrial hearing that no one was selling drugs from Gadson's apartment at the time of King's alleged undercover buy of four bags of heroin. Nevertheless, the jury found this to be a close case, having twice informed the court it was deadlocked before returning a guilty verdict on the third day of deliberations. Testimony by Turner that he brought drug purchasers to Sears rather than to defendant very well could have tilted the case in defendant's favor and resulted in an acquittal. Therefore, the court's warnings to Turner that he could incriminate himself by testifying for defendant, which caused him to invoke his privilege against self-incrimination, may have contributed to the verdict and thus defendant is entitled to a new trial.

At oral argument, defendant's counsel suggested that to cure the taint of the violation of defendant's right to compulsory process in the first trial, Turner would have to be offered immunity if he again asserts the privilege against self-incrimination at defendant's retrial. Because we cannot be sure Turner will assert the privilege at a retrial and the issue has not been briefed, we do not address it. However, if the issue is presented at the retrial, the trial court should be guided by the discussion of this issue in Feaster, supra, 184 N.J. at 262-64.

Accordingly, defendant's convictions are reversed and the case is remanded for a new trial.

 

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A-6227-03T4

April 3, 2006