STATE OF NEW JERSEY v. DADJE DAWARA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4726-07T44726-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DADJE DAWARA,

Defendant-Appellant.

_______________________________________

 

Submitted January 19, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-0559.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Dadje Dawara appeals from an order entered by the trial court on April 2, 2008, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant and co-defendants Maurice Anderson (Anderson) and Hamadi O. Aaron (Aaron) were charged with four counts of first degree robbery, N.J.S.A. 2C:15-1 (counts one to four); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); four counts of second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six to nine); third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count ten); second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count eleven); third degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count twelve); fourth degree unlawful possession of a weapon, specifically mace, N.J.S.A. 2C:39-5(d) (count thirteen); and third degree possession of a weapon for an unlawful purpose, specifically mace, N.J.S.A. 2C:39-4(d) (count fourteen). In addition, defendant was charged with fourth degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count fifteen), and fourth degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count sixteen).

Defendant was tried before a jury. At the trial, the State presented evidence that on the evening of October 24, 2000, at approximately, 8:00 p.m., three individuals robbed a market on 15th Avenue in Newark. Angel Luna, Sr. (Luna), the store's owner, was in the store with his girlfriend, Rose Rodriguez (Rodriguez), and his eleven-year-old son. Rodriguez was at the cash register and his son was in the basement, doing his homework.

Luna went outside to prepare to close the store for the evening. He observed a blue or green car. He saw two persons in the car and one standing outside. As Luna was returning to the store, he observed the three individuals at the store's entrance. One was armed with a silver pistol. Another sprayed Luna with mace.

Luna was thrown to the ground. One of the intruders told Luna to remain still or he would be shot. Luna instructed Rodriguez to give the intruders the money. Luna's son said that one of the intruders was wearing an army jacket. Rodriguez stated that another intruder was wearing blue jeans with a red mask covering his face from the nose down. After the robbery, the intruders left the store.

Luna said that it took about thirty five minutes for the mace to stop burning his eyes. He then called the police. The police arrived shortly thereafter and Luna informed them that the store had been robbed. He said that the intruders had stolen $550 and some coins. A person outside of the store had observed an automobile at the time of the robbery and wrote down the license plate number on a piece of paper, which he gave to Luna. Luna gave the license plate number to the police.

The State also presented evidence that, on the same evening, at around 8:30 p.m., three individuals robbed a supermarket on Central Avenue in Newark. The owner of the market, Berto Estevez (Estevez), was behind the counter in the rear of the store. A worker, Jose Martinez (Martinez), also was present, along with a customer, Ronnie Saunderson (Saunderson). Estevez saw three persons enter the store and announce, this "was a holdup." Estevez was thrown to the floor. One of the intruders took a chain with several medallions from around his neck.

Another pointed a gun at Martinez and Martinez testified "they were gonna kill" him if he did not open the cash register. The intruder took money from the cash register and $100 from Martinez's wallet. Martinez said that the intruders had masks over their faces. One sprayed Martinez in the face with mace and threw him to the floor. Saunderson was forced at gunpoint to lie on the ground. He told the intruders that he did not have any money. He was sprayed in the face with mace.

At approximately 9:15 p.m., Detective Robert Daniel Moore (Moore) of the Newark Police Department (NPD) and his partner Detective Steven Rivers received a dispatch informing them about a car with the license plate number that Luna had provided the police. The officers saw the car, which was a 1997 green Mitsubishi Galant. They observed three persons in the vehicle.

The police stopped the car at the intersection of 14th Avenue and Littleton Avenue. Defendant, Anderson and Aaron were in the car. Moore found cash in the car, along with a bracelet with several charms, another charm and a pendant. The police also recovered 232 vials of cocaine from the trunk of the car.

The police brought Luna, his son and Rodriguez to the intersection of 14th Avenue and Littleton. They were shown a car and the three occupants inside. Luna said that it was the same car that he had seen outside his store earlier that evening. The license plate number matched the number he had given to the police. In addition, Estevez identified several items of jewelry recovered from the car as items that were taken from him in the robbery.

Defendant was found guilty on all counts, with the exception of count twelve, in which he was charged with possession of CDS with intent to distribute the same near a school zone. At sentencing, the court imposed an aggregate term of forty years of incarceration, with a thirty-four year period of parole ineligibility, as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed and raised the following arguments:

POINT I

THE DEFENDANT'S CONVICTION SHOULD BE REVERSED AND HIS SENTENCE VACATED BECAUSE THE JUDGE GAVE AN IMPROPER INSTRUCTION TO THE JURY ON ACCOMPLICE LIABILITY (Not Raised Below).

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE DIGITAL PHOTOS MARKED AS S-15, S-16 AND S-17.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING TESTIMONY TO BE INTRODUCED CONCERNING THE MOTIVE OF THE TWO ROBBERIES AS BEING AN ATTEMPT TO RAISE BAIL MONEY FOR CO-DEFENDANT AARON AS THIS WAS HIGHLY PREJUDICIAL AND CONTRARY TO EVIDENCE RULE 404(b) CONCERNING PRIOR BAD ACTS.

POINT IV

DEFENDANT'S SENTENCE MUST BE MODIFIED AS THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES AS WELL AS IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE TERM CONTRARY TO THE HOLDING OF BLAKELY v. WASHINGTON.

We affirmed defendant's convictions and the sentences imposed. State v. Dawara, No. A-3903-03 (App. Div. February 10, 2006) (slip op. at 27).

Thereafter, defendant filed a pro se PCR petition. PCR counsel was appointed and filed a brief in support of the petition. The trial court considered the petition on April 1, 2008, and placed a decision on the record, in which it concluded that the petition should be denied. The court entered an order dated April 2, 2008, denying PCR. This appeal followed.

In this appeal, defendant raises the following issues for our consideration:

POINT I:

THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL, APPELLATE AND POST CONVICTION RELIEF LEVELS BY VIRTUE OF THE FAILURE OF ANY OF HIS ATTORNEYS TO OBJECT TO THE FAILURE OF THE TRIAL COURT TO APPROPRIATELY INSTRUCT THE JURY WITH RESPECT TO THE LIMITED ADMISSIBILITY OF CO-DEFENDANT AARON'S GUILTY PLEA.

POINT II:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO PURSUE A MOTION TO SUPPRESS RELATING TO THE SEARCH RESULTING IN THE SEIZURE OF THE GUN ALLEGEDLY USED IN THE ROBBERIES.

II.

We first turn to defendant's contention that he was denied the effective assistance of trial, appellate and PCR counsel because his attorneys did not object to the trial court's failure to instruct the jury that it could not consider Aaron's guilty plea as substantive evidence of defendant's guilt.

The following facts are pertinent to our decision on this issue. After his arrest, Aaron cooperated with the police and pled guilty. The State called him as a witness for the prosecution at defendant's trial. Aaron testified that that he had been acquainted with defendant for about two years before the robberies and they spent time together on a daily basis.

Aaron further testified that, on the night the robberies were committed, defendant and Anderson picked him up in defendant's green Mitsubishi Galant. At around 7:30 p.m., they drove to a residence where defendant's girlfriend, S.H., was living. According to Aaron, S.H. gave defendant the gun in a white sock. Aaron said that the gun was the weapon used in the robberies.

Defendant, Anderson and Aaron then drove to the Crosstown market. Aaron was wearing an army fatigue jacket. He stated that defendant was in possession of the gun when they entered the market on 15th Avenue. Defendant pointed the gun at Rodriguez. Aaron took the money and Anderson sprayed the victims with mace. The three men then left the store. According to Aaron, defendant hid the money in the console between the front seats of the car.

The three men drove around for about five or ten minutes and went to the supermarket on Central Avenue. They entered the store. According to Aaron, at this point, defendant had the mace and Anderson had the gun. Aaron jumped over the counter to get to the cash register and take the money. He made an old man lay down on the floor. Aaron said that they took the money and "stuff" and left.

After the robberies, the three men returned to S.H.'s residence and dropped off the gun which was again placed into the white sock. The money, jewelry and other items taken in the robberies were placed in the console in the front seat of defendant's car. They drove to Aaron's house and were about to go to Anderson's home when the police stopped them.

Aaron additionally testified that he pled guilty to all of the charges against him in the indictment. He also pled guilty to two other indictments charging robbery and possession of drugs. Aaron said that he thought he would be sentenced to fifteen years of incarceration for the two robberies at issue in this case, and required to serve 85% of that sentence without parole. He also said that he pled guilty to certain drug charges in federal court and expected to be sentenced to ten years of incarceration. Defendant's counsel extensively cross-examined Aaron regarding his pleas and his agreement to cooperate with the prosecution.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, defendant must meet the following test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

To establish that his or her attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In assessing whether counsel was deficient in his representation of a defendant, the court must presume that the attorney made "'all significant decisions in the exercise of reasonable professional judgment.'" State v. Savage, 120 N.J. 594, 614 (1990) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). In addition, to establish that defendant was prejudiced by the deficient performance of his attorney, defendant must show that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant argues that he was denied the effective assistance of counsel because at his trial counsel did not object to the trial court's failure to provide the jury with an instruction limiting the use of Aaron's guilty plea in its deliberations. He also contends that his appellate and PCR attorneys failed to raise these issues.

"[W]hen a guilty plea of a co-defendant is brought to a jury's attention without any guiding instructions as to its use in their deliberations, the potential for misuse is manifest." State v. Stefanelli, 78 N.J. 418, 435 (1979) (citing United States v. Harrell, 436 F.2d 606, 614 (5th Cir. 1970)). Nevertheless, a co-defendant's guilty plea is admissible to affect his or her credibility as a witness. Id. at 433. However, the court should provide the jury with a limiting instruction limiting the use of the plea to the issue of credibility. Id. at 435.

We agree with defendant that trial counsel erred by failing to seek an instruction that Aaron's guilty plea could not be considered as substantive evidence of defendant's guilt. We also agree that appellate counsel should have raised the issue in the earlier appeal and argued that the trial court's failure to provide the instruction sua sponte was plain error. We additionally agree that the ineffective-assistance-of-counsel claim should have been raised in the PCR proceedings.

Even so, we do not agree that the omissions by trial, appellate and PCR counsel constituted the ineffective assistance of counsel because we are convinced that the absence of the instruction was harmless error. In Stefanelli, a co-defendant pled guilty and the court permitted the plea to be introduced as evidence in the defendant's trial. Id. at 427. The trial court did not provide the jury with an instruction limiting its use of the plea in its deliberations. Ibid.

The Stefanelli Court found that the absence of a limiting instruction regarding a co-defendant's guilty plea did not rise to the level of plain error. Id. at 436. The Court stated that the co-defendant's involvement in the crimes had been "established independently by his detailed testimony concerning his involvement in the crime[.]" Ibid. The jury was made aware that the guilty plea was based on the facts to which he testified. Ibid.

Moreover, the co-defendant "was thoroughly cross-examined and his credibility severely tested." Ibid. The Court stated that the guilty plea added "little, if any, extra evidential weight to the proofs[.]" Ibid. The Court concluded that the absence of the instruction "did not have the clear capacity to produce an unjust result[.]" Id. at 437.

The same conclusion applies here. In his testimony, Aaron provided extensive details concerning the robberies, which corroborated the testimony of the victims. Aaron's testimony, along with the other evidence in the case, "established independently" his own involvement in the robberies. Id. at 436. Moreover, Aaron was extensively cross-examined by defense counsel. In our judgment, Aaron's guilty plea added little "extra evidential weight to the proofs" of this case, which provided the jury with sufficient evidence from which it could find defendant guilty of the charged offenses, beyond a reasonable doubt.

Consequently, the result of the trial would not have been different if defendant's attorney had asked for the limiting instruction concerning Aaron's plea. Moreover, defendant's earlier appeal and his PCR petition would not have been decided differently if this issue had been raised by appellate and PCR counsel.

We therefore conclude that defendant was not denied the effective assistance of trial counsel because he did not object to the trial court's failure to provide the jury with a limiting instruction regarding Aaron's guilty plea. We further conclude that defendant was not denied the effective assistance of appellate or PCR counsel because they did not raise this issue.

III.

We turn to defendant's contention that he was denied the effective assistance of trial counsel because his attorney did not file a motion to suppress the gun found in the search of the home of S.H.'s aunt, Chestina Covington (Covington), where S.H. was living at the time of the robberies.

At the trial, Covington testified that the police came to her home about 4:30 or 5:00 a.m. on October 25, 2000, and asked whether S.H. was at home. Covington informed the police that S.H. was not there. The police asked Covington where were the guns, and she told them that she did not have any guns. The police left but asked Covington to have S.H. contact them right away because they needed to speak with her.

S.H. later called Covington and they went to the police station. The police asked Covington to consent to a search of her home. They told her that they were looking for a gun. She told them that there were no guns in her house. She looked at S.H., who smiled and held her head down.

Officer Maldonado testified that he informed Covington that she was not required to sign the consent-to-search form. Covington signed the form. After Covington provided her consent to the search, the officers returned to the home with Covington and S.H. S.H. directed the police to a laundry bag. A detective pulled a white sock out of the bag, which contained the gun.

Defendant argues that the gun should have been suppressed because the police never informed Covington that she could have refused their request for consent to the search. According to defendant, Covington would have refused to provide her consent, because she was exposing S.H. to criminal charges. Defendant asserts that Covington would have disposed of the weapon "in an appropriate fashion" if she had been told that she could refuse to consent to the search.

The PCR court determined that defendant was not denied the effective assistance of counsel because his trial attorney did not move for suppression of the weapon. The court found that there was no basis for such a motion because Covington testified at trial that she had consented to the search of her home and there was no evidence that she did not do so knowingly. As the court pointed out, Covington never testified that she did not want the police to enter her house the second time, nor did she say that she had been bullied by the police into giving her consent to the search.

In our view, the record clearly supports the trial court's findings. We therefore conclude that PCR court correctly determined that defendant was not denied the effective assistance of trial counsel because his trial attorney did not seek suppression of the evidence found in the search of Covington's home.

Affirmed.

 

We note that on April 4, 2006, the Supreme Court granted defendant's petition for certification, limited to the sentences imposed for first degree robbery. State v. Dawara, 186 N.J 600 (2006). The Court remanded the matter to the trial court for resentencing in light of State v. Natale, 184 N.J. 458 (2004). Dawara, supra, 186 N.J. at 600. The record does not disclose the result of the remand.

We identify defendant's girlfriend as S.H. because she was seventeen years old at the time of the trial.

(continued)

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A-4726-07T4

March 4, 2010