STATE OF NEW JERSEY v. CHARLES DAVIDSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1059-07T41059-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES DAVIDSON,

Defendant-Appellant.

____________________________________________________________

 

Argued December 2, 2008 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

05-09-1220.

Brian Plunkett, Assistant Deputy Public

Defender, argued the cause for appellant

(Yvonne Smith Segars, Public Defender,

attorney; Mr. Plunkett, of counsel and on

the brief).

Marc A. Festa, Senior Assistant Prosecutor,

argued the cause for respondent (James F.

Avigliano, Passaic County Prosecutor,

attorney; Mr. Festa, of counsel and on the

brief).

PER CURIAM

Following a jury trial, defendant Charles Davidson was convicted of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); and third-degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three). At sentencing on June 27, 2007, counts one and two were merged into count three. After the court granted the State's motion for imposition of an extended term of imprisonment under N.J.S.A. 2C:43-6(f), defendant was sentenced to a ten-year prison term with five years of parole ineligibility.

Defendant presents the following arguments on appeal:

POINT I

DEFENDANT IS ENTITLED TO A NEW TRIAL BASED UPON THE PROPOSED EXCULPATORY TESTIMONY OF NEWLY DISCOVERED EYEWITNESS LATASHA BEAMON.

POINT II

DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN FAILING TO LOCATE MS. BEAMON PRIOR TO TRIAL.

POINT III

THERE ARE INSUFFICIENT AGGRAVATING FACTORS TO SUPPORT THE MAXIMUM EXTENDED TERM OF 10 YEARS WITH A 5 YEAR PERIOD OF PAROLE INELIGIBILITY.

Based on our review of the record, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

On June 23, 2005, Detective Timothy Tabor, a member of the Paterson Police Department, was on surveillance duty in an unmarked police vehicle at the corner of Godwin and Graham Avenues. Tabor testified that he arrived at the location, which was "well lit with street lights," at approximately 11:10 p.m., and he parked about ten feet away from the area he was surveilling. Tabor testified that he had an unobstructed view of a man later identified as defendant for approximately twenty minutes. During this period, Tabor observed defendant complete two "hand-to-hand transactions" with two unidentified females who handed him money. In each case, after defendant received the money, he walked around the corner to an abandoned lot and removed some small objects from a container. Defendant then returned to his original location and handed the small objects to the unidentified females. Tabor also testified the exchanges occurred within 1000 feet of School Number 6, which operates as a functioning school.

Officer Tabor provided his partner, Detective Parcelli, who was part of a back-up unit, with a description of defendant and his location, and Tabor observed that defendant was arrested by members of the back-up unit. Tabor also directed Parcelli to the location in the vacant lot where defendant had obtained the small objects that he had given to the unidentified females. Parcelli testified that he recovered a container with forty-seven "baggies," and the parties stipulated that the baggies contained cocaine.

At the time of his arrest, defendant was in possession of $2388, which was confiscated by the police. The confiscated funds consisted of eighteen $100 bills, eight $50 bills, seven $20 bills, three $10 bills, and three singles. Detective Tabor testified that such denominations are not typical of street-level drug transactions because each of the forty-seven baggies that were seized from the vacant lot would "routinely go for $10."

Defendant elected not to testify, but he called two witnesses in his defense. Additionally, he introduced employment records showing that he worked at Rite-Aid from 6:29 p.m. until 10:05 p.m., on June 23, 2005, and Rite-Aid issued a check to defendant in the amount of $422.90 that same day.

Defendant's mother, Dorothea Charles, testified that prior to defendant's arrest, she had given defendant approximately $2000 to use as a security deposit for a new apartment, and that her son kept the money in his wallet. Defendant's mother also testified that on June 23, 2005, her son left her house sometime between 11:15 p.m. and ll:30 p.m. to go to his girlfriend's house. When defendant was arrested at approximately 11:30 p.m., he was about six blocks from his mother's house.

Defendant's girlfriend, Metesha Satchwell, testified that she lived on Godwin Avenue in June 2005, and that defendant would usually visit her at her house when he was done working. She also testified as follows:

Q. . . . Now on the night in question what time was the defendant supposed to be coming to your house?

A. Well, the store that he works at closes at twelve o'clock, so depending on how busy the store is he'll [leave work] between 11:00 and 11:30 [p.m.]. So that night he told me he was going to leave work at eleven o'clock.

Q. Okay. And then what was going to happen?

A. He was going to stop at the chicken store and pick us up something to eat and then come to my house.

Q. And he never got to your house?

A. No.

In support of defendant's motion for a new trial, defense counsel certified that prior to trial, defendant had mentioned he was talking to a witness named "Tasha" when the police arrested him. Counsel certified that his investigator, David Young, had attempted to locate Tasha "on at least three occasions . . . but was unable to do so." Counsel also certified that defendant's mother and father "had located 'Tasha' as well as another witness named Tameka Johnson," and counsel submitted copies of their handwritten, sworn statements to the court.

Latasha Beamon's statement dated August 25, 2005, reads as follows:

Latasha Beamon, being duly sworn, deposes and says: On the night Jr. was arrested he was sitting on my porch along with myself and my friend Tameka. We had been sitting there for about an hour maybe before the police come and arrested him. I didn't see him talking to anyone except for me and Tameka. The police drove around the block a few times driving slow and looking in our direction but we didn't pay them to much attention because we weren't doing anything wrong so the last time they came around they stopped right in front of my house. Jr. was sitting with his back toward the street so he couldn't see what was going on behind him so I told him that they were coming for him when they jumped out of their car, but by the time Jr. was turning around to see what was going on they had pulled him off the porch already and I heard the police say to him that he fits the description of the person they were looking for when he asked what was he being arrested for.

The second statement, from Tameka Johnson, dated August 22, 2005, states:

Tameka Johnson, being only sworn deposes and says:

I myself Tameka Johnson and Tasha Beameon was sitting on the porch on Rosa Parks Blvd when JB pulled up and parked his car by 237 Rosa Parks Blvd he got out of his car and starts to talk to me and my friend Tasha as we were talking the cops pulled up and jumped out to arrest him. I believe it was late afternoon when this happen[ed]. It was about 10-15 minutes when the police arrived after JB stood and talked to us I never saw him leave because we were still having a conversation when the arrest was being made.

In denying defendant's motion for a new trial, the trial court noted:

The defense presented the Defendant's girlfriend at trial, who testified that he called her between 11: 00 P.M. and 12:00 A.M. and told her he was coming over her house, but was going to stop first to pick up some chicken. The Defendant's apparent alibi at trial was that he was in the area of 237 Graham Avenue [Rosa Parks Blvd] picking up some chicken when he was arrested by the police. The Defendant's mother also testified at trial, stating that the Defendant came to her home first after work, and left for his girlfriend's house around 11:15 p.m.

When viewing the proposed testimony in light of the testimony offered at trial, Ms. Beamon's affidavit is "merely impeaching or contradictory" to the testimony offered at trial and would be of little weight to the jury. Firstly, the proffered testimony contradicts the testimony of the Defendant's mother; it would be impossible for the Defendant to have been sitting on Ms. Beamon's porch for "about an hour" before he was arrested at 11:30, if as [Dorothea] Charles testified, he left her home at 11:15. Secondly, the proposed testimony of Ms. Beamon contradicts the testimony of the Defendant's girlfriend who stated the Defendant left work between 11:00 and 12:00. Again, if the Defendant was innocently in the area of 237 Graham Ave. picking up some chicken prior to his arrest, he could not have simultaneously been on the porch talking with Ms. Beamon and Ms. Johnson for an hour. Therefore, the testimony of Ms. Beamon merely contradicts or impeaches the testimony offered at trial by the Defendant and is therefore insufficient to warrant a grant of a new trial.

Moreover, the testimony of Tameka Johnson contradicts not only the testimony offered at trial, but also the proffered testimony of Latasha Beamon. Ms. Johnson affirms that the Defendant was only on the porch of 237 Rosa Parks Blvd. [Graham Ave.] for 10 to 15 minutes, talking with herself and Ms. Beamon when . . . he was arrested. She also attests that she believed these events took place "in the late afternoon." See Tameka Johnson Affidavit, August 22, 2006 (emphasis added). The two alibi witnesses the Defendant now proposes to introduce at a new trial contradict not only the testimony of the witnesses presented at trial, but they also contradict each other.

[(First and third alterations in original).]

In a written decision dated May 4, 2007, the trial court denied defendant's motion for a new trial. The court concluded that "the proffered testimony of Ms. Beamon and Ms. Johnson fails each and every prong under the Carter test." Because the court's findings of fact and conclusions of law are fully supported by the record, we affirm the denial of defendant's motion for a new trial substantially for the reasons stated by Judge Guzman in his written decision.

Defendant also challenges his sentence, but he does not dispute that he was subject to a mandatory extended term as a repeat drug offender under N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137, 151 (2006) ("[W]hen the predicate prior sentences are present, enhanced sentencing must occur."). In determining defendant's sentence within the extended-term range, the court noted that this was "the defendant's sixth felony conviction." The court also found that this was defendant's fourth conviction for either distributing a controlled dangerous substance (CDS) or possessing CDS with intent to distribute. Consequently, the court concluded that three aggravating factors were present: (1) the risk that defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior criminal record and the nature of his convictions, N.J.S.A. 2C:44-1(a)(6); and (3) the need to deter, N.J.S.A. 2C:44-1(a)(9). Because there were no mitigating factors, N.J.S.A. 2C:44-1(b), the court imposed a ten-year extended term with five years of parole ineligibility. Under these circumstances, defendant's sentence is not manifestly excessive, or unduly punitive, and it does not constitute an abuse of discretion.

Affirmed.

 

In State v. Carter, 85 N.J. 300, 314 (1981), the Court held that: "the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted."

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A-1059-07T4

July 14, 2009