STATE OF NEW JERSEY v. ROGER FULLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2393-09T42393-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROGER FULLER,

Defendant-Respondent.

________________________________________________________________

 

Submitted April 27, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Indictment No. 03-09-0963.

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for appellant

(Dorothy Hersh, Assistant Prosecutor,

of counsel and on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Stefan Van Jura,

Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Roger Fuller was convicted of third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(3); third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of a controlled dangerous substance with intent to distribute on or near a public facility, N.J.S.A. 2C:35-7.1a; third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b and second-degree possession of a weapon while committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1a. Thereafter, in a separate deliberation, the same jury found defendant guilty of possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b. The trial judge sentenced defendant to an aggregate term of 16 years imprisonment with an aggregate minimum period of parole ineligibility of eight years. In addition, the judge imposed statutory fines, penalties and assessments. On appeal, we affirmed the conviction and remanded for resentencing consistent with State v. Natale, 184 N.J. 458 (2005). The Supreme Court denied certification. State v. Fuller, 192 N.J. 596 (2007).

Subsequently, defendant filed a timely Petition for Post-Conviction Relief (PCR). After ordering and conducting an evidentiary hearing, Judge Ostrer, in the Law Division, granted the requested relief and ordered a new trial. We granted the State's motion for leave to appeal and now affirm.

In his opinion, which we quote at length, the judge set forth his factual findings relevant to the PCR.

In general, the conviction rests largely on the testimony of the arresting officers, Marlon Parrott and Brian Suschke, and an admitted heroin addict, Ryan Albert. The addict testified that early in the afternoon of April 8, 2003, after shooting up heroin, he went to Fuller's apartment to buy heroin. Allegedly, Fuller previously sold heroin to Albert. Fuller allegedly told Albert he had nothing to sell, and Albert lent Fuller his 1994 Ford Explorer. Fuller agreed to give him five bags of heroin in return for use of the car. Albert testified that Fuller asked him to clean out the car before he took it, so Albert removed his used needles (the suggestion being that Albert did not leave heroin in the vehicle, and Fuller intended to use the vehicle to purchase heroin and did not want other evidence of wrongdoing in the vehicle).

Albert testified that he had waited in Fuller's apartment with a man named Cliff, and Cliff's girlfriend, and that Clifford had also in the past supplied him with heroin. When Fuller did not return with the vehicle after roughly 36 hours, Albert became fearful and alerted police. Albert spoke to Parrott and Suschke and their sergeant on the street near Fuller's apartment. Albert also testified that after his truck was recovered he called Cliff the next day.

However, Albert's credibility was questionable. He admitted that he lied to the police, saying he had lent the car for $50, that it was missing only two hours, and the borrower of the car was named Dex. Furthermore, Parrott testified that Albert's conversation occurred before midnight April 8, 2003, roughly twenty-four hours earlier than Albert said it occurred. Also, Albert admitted to prior convictions and that he was on parole. Moreover, he admitted to attempting to purchase heroin itself a crime.

The officers testified that they stopped Fuller when they spotted him driving what looked like the missing Explorer (which Albert said had a broken window). They also testified that Fuller had failed to signal a lane change. Suschke claimed to have seen furtive movements, including Fuller leaning forward although none of that appeared in Parrott's report. Upon effecting the stop, the two officers noticed Fuller, and two passengers in the vehicle Velvet Brown, an adult woman, in the front passenger seat, and a juvenile female Shakira Johnson in the rear bench seat. Parrott saw marijuana in plain view, removed the passengers from the vehicle, and then spotted the nose of a gun barrel peaking out from under the rear of Brown's seat, pointing toward the rear passenger seat.

Parrott and Suschke also saw two McDonalds drink cups in the front center console's cup holders, Parrott said he saw a couple of McDonalds food bags Suschke said he saw one in the console, too. Suschke said the drinks were half full with watered- down ice. Suschke testified that as Fuller exited the truck, he took a food bag and tossed it to the sidewalk, where it spilled out a half-eaten hamburger. Suschke retrieved the bag, and found three packages of heroin, one of which had been ripped open.

Testifying on behalf of Fuller was Velvet Brown, who was the mother of Fuller's daughter, and was Fuller's live-in girlfriend in April 2003 (but was no longer living with him at time of trial and claimed to have had a falling out with him). She testified that Albert arrived with a man named Cliff and another man. She said that Fuller asked Albert if he could borrow his truck, but did not promise anything in return. She claimed that the McDonald's drinks and food bag were in the car when she entered it. She claimed that Fuller and she had used the truck so that she could drop off her cousin.

She said that she put the gun in the vehicle without telling Fuller. She obtained the gun from another man with whom she was romantically involved and she ultimately but reluctantly identified as Chase Williams. She did not want Fuller to know about the relationship. She claimed that she carried it for protection because her cousin had been stabbed.

She admitted that Fuller smoked marijuana while in the truck. She also claimed that Fuller did not remove the McDonalds bag from the vehicle, nor did he throw it to the sidewalk. She also said that Fuller had been homeless before meeting her; he lived at her apartment; he had no money; and had not been a drug dealer to her knowledge.

Defense counsel conceded that he may have apparently unintentionally opened the door to Fuller's possible past drug dealing by asking Velvet Brown if she knew him as a drug dealer. He admitted at a sidebar, "Well, I think, unfortunately, I've already opened the door to that." Eliciting her negative answer only made sense assuming Fuller had no prior history of drug dealing.

Fuller testified that he was unaware that there was heroin or a gun in the truck. He said that Ryan arrived at Velvet Brown's apartment with Cliff and another man. He, Brown and Brown's cousin, Shakira Johnson were already there. He asked Ryan if he could borrow his truck to take Shakira Johnson home. Ryan agreed. Fuller admitted that he kept the truck longer than expected but about an hour-and-a-half, not twelve hours. He admitted that he smoked marijuana while driving around.

He stated that after the traffic stop, he provided his personal information, and admitted he had no driver's license. He said he was asked what was in the McDonald's bag; he responded that he didn't know, but showed it to the inquiring officer, who saw there was food in it and he put it back. He stepped out of the vehicle and submitted to a search of his person. He denied carrying anything out of the truck or throwing anything down.

He stated that he was permitted to just walk away when the police called him back after they discovered the gun. They placed him under arrest. He also admitted to committing a burglary in 1997 and successfully completing a three-year-term of probation.

On redirect, Fuller also testified that he had only $21 on his person when arrested; and that he never owned a car apparently to establish that it would have been unlikely that a person of his limited means could afford to purchase a substantial amount of heroin worth $1500 according to testimony at trial.

Defense counsel elicited from defendant that he was [a] drug dealer.

Q. Mr. Fuller, in April 2003, were you a drug dealer?

A. No, sir.

Q. Were you ever a drug dealer?

A. Not at the time they said I was. I was a juvenile at the time.

Q. In April of 2003, you weren't selling drugs?

A. No, I wasn't.

It appears likely that defense counsel was unaware that defendant had previously sold drugs. Fuller asserted in a certification in support of his petition that his defense counsel never discussed the case with him. Inasmuch as the defense opened the door, Fuller had to reaffirm on cross that he had been a drug dealer, but he did not sell heroin. Prosecutor was able to inquire without objection about a possible witness who would confirm that Fuller sold heroin.

Q. You never sold heroin to anybody?

A. Never in my life, ever.

Q. So we couldn't find someone who could come in her and say they bought heroin from you?

A. You could find anybody for the right price to tell that I sold heroin to them.

Q. So your testimony would be if somebody said that, it's because they were paid off or lying?

A. I guess so. I don't know. Unless you gave them a deal so they wouldn't go to jail.

Q. How soon before this incident do you admit that you were a drug dealer? Did you stop the day before this happened?

A. I been stopped a long time ago. I wasn't making no money from it. I wasn't good at it. So what was the use of keeping pursuing it.

In cross-examination, the prosecutor explored the implausibility that Albert whom Fuller said he did not know well would lend his car to him and leave in it 150 decks of heroin. Also explored was the implausibility that Fuller was unaware that Brown carried the gun, although he lived with her for many months.

At a charging conference, the court said that it would charge the jury regarding Fuller's prior conviction, but defense counsel did not request any specific charge regarding defendant's prior sale of drugs when a juvenile, which was not a conviction.

In closing, the defense suggested an alternative theory of the case: that Cliff had left the drugs in the vehicle; he was the drug supplier and had supplied Albert. That fit Fuller's alleged ignorance of the presence of the heroin; it also made it reasonable that Albert would call the police to seek his vehicle something he would have been unlikely to do if he knew the heroin was in the truck. He twice referred to Fuller's admission of prior drug dealing, saying it was part of Fuller's effort to be truthful. He argued that Albert's story was unbelievable; he would not have remained in the apartment for over a day, deprived of heroin. He argued that Albert would be fearful of implicating Cliff, if he were his drug supplier.

The State argued that Albert was believable, that it would have been implausible for him to leave the heroin in the vehicle before allowing Fuller to use it; and that it was implausible for Albert to lend his car to Fuller for any reason other than Albert's own self-interest that is, his interest in receiving some heroin from Fuller. The State argued that the officers were believable, particularly Suschke's testimony that Fuller tossed the McDonald's bag. The prosecutor also reminded the jury of Fuller's admission of prior drug dealing.

Now, it is not a coincidence, ladies and gentlemen, that when Mr. Fuller is found, that's, in fact, just what he has in his custody, heroin. Just what he promised Ryan Albert he was going to get, just what Ryan Albert lent him his car for. That's what he had in his possession. He had $21 in his possession, but as you know, this heroin is worth $1,500. So after you make a cash outlay like that, how much money are you going to have on you? There was not enough time to start turning it around for a profit. He simply had the car for the purposes of getting it. He had the car to give Ryan Albert his share to use that car, and he hadn't had a chance yet to turn a profit. That's why he didn't have any money on him. And again, I remind you of Roger Fuller's own words: He wasn't that good at it.

The prosecution argued that Brown's claim that Fuller was unaware that she had a gun was unbelievable under the circumstances, and Brown was biased.

In the instructions to the jury, the court delivered the model charge on prior conviction of a witness as it related to Albert and prior conviction of a defendant as it related to Fuller. But the court did not address the proper use of the testimony of Fuller's past bad act regarding the sale of drugs as a juvenile, which was not presented as a prior conviction.

On appeal, the State asserts:

POINT I

THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE WHEN, IN AN ATTEMPT TO PORTRAY DEFENDANT AS AN ADDICT RATHER THAN A DEALER, COUNSEL'S DIRECT EXAMINATION ELICITED UNEXPECTED INCULPATORY TESTIMONY FROM DEFENDANT WHICH CONTRADICTED DEFENDANT'S PRIOR COMMENTS TO COUNSEL, AND WHICH ALSO CONTRADICTED DEFENDANT'S CRIMINAL HISTORY.

A. Inquiry regarding whether defendant was ever a drug dealer.

B. Failure to request a limiting instruction.

We first set forth the appropriate standards that apply when considering an application for post-conviction relief. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Perry, 124 N.J. 128, 153-54 (1991).

In assessing the first prong, a court must determine whether counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted). As noted, in considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of reasonable professional assistance." Ibid. (citation and internal quotation marks omitted). Defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (citation and internal quotation marks omitted). As the Supreme Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted).]

The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed.2d 696-97). In order to prove prejudice, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 206-07 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

The State claims that counsel's strategy was sound given the information that was available to him upon review of defendant's criminal history and the absence of any juvenile record. While that may be true to a point, it is a sine qua non of effective and appropriate trial preparation for counsel to review such history with defendant, prior to trial, to both verify the information as well as ascertain whether the history was accurate as reported.

At a minimum, a trial attorney must be assured that questions he will be asking his client are not misunderstood or that language incorporated in a question is not imprecise that even the most sophisticated and experienced witness would fail to comprehend the import or implications of a particular question. Here, counsel's inquiry as to whether defendant was "ever" a drug dealer covered the spectrum of whether defendant had, at any time, been accused of or been convicted of drug dealing. Defendant clearly considered within the scope of the question the fact that he had been accused of being a drug dealer as a juvenile, and he responded in kind. Adequate preparation, a hallmark of effective counsel, was lacking. See Wiggins v. Smith, 539 U.S. 510, 534-536, 123 S. Ct. 2527, 2542-43, 156 L. Ed. 2d 471, 493-94 (2003) (noting that where counsel failed to discover and present mitigating evidence regarding defendant's sordid and difficult history, counsel was "not in a position to make a reasonable strategic choice" during sentencing); Rolan v. Vaughn, 445 F.3d 671, 682 (3d. Cir. 2006) (observing that where counsel failed to conduct any pretrial investigation, counsel's trial strategy was "uninformed" and not entitled to a presumption of deference).

Judge Ostrer carefully applied the Strickland standards here and concluded that both prongs had been satisfied. In doing so, he made essential factual findings, which were based on the evidence presented. See State v. Feaster, 184 N.J. 235, 277-78 (2005) (restating that in the context of petition for PCR, the appellate court must "'give deference to the trial court[']s factual findings . . . when supported by adequate, substantial and credible evidence'") (quoting State v. Harris, 181 N.J. 391 (2004) (citations and internal quotation marks omitted)); see also New Jersey Div. of Youth and Family Servs. v. L.L., 201 N.J. 210, 226-27(2010) (observing that the appellate court will not disturb trial court's findings when supported by substantial credible evidence, but we will intervene when the court's conclusion is "clearly mistaken or wide off the mark"). We are also satisfied that he properly applied the appropriate legal principles. Abbott v. Burke, 199 N.J. 140, 146 n.2 (2009) (trial court's legal conclusions are entitled to "no particular deference") (citation omitted); State v. Krause, 399 N.J. Super. 579, 581 (App. Div. 2008) (same).

In sum, we affirm for the reasons set forth in Judge Ostrer's thorough and thoughtful written opinion of August 4, 2009.

 
Affirmed.

We were not provided with a copy of defendant's PCR petition; however, we are satisfied that the record is sufficient to resolve the issues in dispute.

(continued)

(continued)

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A-2393-09T4

May 18, 2010