STATE OF NEW JERSEY v. MICHAEL DANIELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3227-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL DANIELS,

Defendant-Appellant.

_________________________________

December 31, 2012

 

Submitted December 18, 2012 - Decided

 

Before Judges Yannotti, Harris, and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-03-0788.

 

Faugno & Associates, L.L.C., attorneys for appellant (Paul Faugno, on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Daniels appeals from a January 17, 2012 judgment of conviction memorializing five crimes: second-degree conspiracy to possess heroin with the intent to distribute, N.J.S.A. 2C:5-2; 2C:35-10(a)(1); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); 2C:35-5(b)(3); third-degree possession of heroin with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and second-degree possession of heroin with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. After merger, Daniels was sentenced to seven years with a three-and-one-half-year parole disqualifier. We affirm.

I.

A.

We garner the facts from the record of the jury trial. Based upon information obtained from third-parties, several Newark police officers engaged in a plan to investigate suspicious activity at a multi-family apartment building on Brunswick Street. The building is located within 500 feet of a public park and within 1000 feet of a school. On September 17, 2009, Detective Lydell James was deployed to that neighborhood where, from an unmarked police vehicle, he observed numerous individuals hurriedly walk into and out of the apartment building.1

Eventually, as part of their police investigation, James and two other detectives all in plain clothing entered the unlocked apartment building and ascended a stairwell to the third floor. There they encountered Daniels and two other individuals between the third and fourth floors. James testified that as soon as he saw Daniels, he observed "a glassine envelope in his hand," which contained heroin. After the envelope was seized, James observed that it was stamped with a "teal green" image of a machine gun and the word "Vengeance."

Also present was co-defendant Karriem Sanchez, who was observed sitting on a windowsill "actually counting money." Later, Sanchez was found in possession of $235 in cash, plus forty-nine glassine envelopes of heroin that, according to James, each had "a teal green logo with machine gun and . . . the word Vengeance on it."

The third individual, Charles Dunlap was found in possession of a single ten-dollar bill clutched in his hand. The trial testimony was as follows:

[THE PROSECUTOR]: All right. How much money did he have in his hand?

 

[JAMES]: A $10 bill.

 

[THE PROSECUTOR]: Okay. Now, you said he was holding it in his hand. Given your training and experience with respect to investigations into illegal narcotics activity, did that create any suspicions in your mind?

 

[DEFENSE COUNSEL]: Objection.

 

. . . .

 

[THE COURT]: Objection overruled. I'll permit the question. The Officer can certainly respond to that question based on the experience, training and etcetera that he's already testified to.

 

. . . .

 

 

[THE PROSECUTOR]: Based on what you observed, that is Mr. Dunlap holding the $10 bill, and your training and experience, did seeing that create any suspicions in your mind?

 

[JAMES]: Yes it did.

 

[THE PROSECUTOR]: What was that?

 

[JAMES]: That a narcotics transaction was occurring.

As part of the continuing investigation, the involved police officers suspected that drug trafficking activity was occurring in apartment 3A, located at the foot of the stairwell where Daniels was found. Among the things that alerted the police to apartment 3A was Detective Peter Chirico's observations of an individual in that apartment throwing "several bricks glassine envelopes, because they were wrapped out the window." After gaining entry to the apartment, the police found two persons inside and they seized additional heroin. An examination of the "several bricks," revealed that each was comprised of fifty envelopes containing heroin, and each envelope was stamped with the word Vengeance on it.

B.

At trial, Daniels moved for a mistrial based upon James's expression that "a narcotics transaction was occurring" in the stairwell. The trial judge denied the motion, but agreed that "the essence of [State v. McLean, 205 N.J. 438 (2011)] . . . is that a fact witness is not permitted to give the type of testimony or opinion provided by Detective James as a response to the prosecutor's question." Accordingly, the judge addressed the gaffe by preparing a curative instruction, which he presented to the jury before the State rested its case, and again in the final jury charge.

Daniels elected not to testify at trial. After closing arguments, but before the jury was instructed, Daniels's attorney discovered that a certified copy of Daniels's June 7, 2005 judgment of conviction contained an error. That document indicated that Daniels had been convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). Actually, Daniels had only been convicted of the disorderly persons offense of remaining in a public place with the purpose of obtaining or distributing a controlled dangerous substance, N.J.S.A. 2C:33-2.1. Defense counsel demanded both a mistrial and the dismissal of all charges against his client due to the inaccurate judgment of conviction.

The attorney contended that "we elected not to have Mr. Daniels take the stand" due to misplaced reliance upon the erroneous judgment of conviction, which would have been used to impeach Daniels's credibility if he testified. It was conceded that Daniels himself harbored questions about the accuracy of the judgment of conviction when it was produced earlier during the trial. Nevertheless, although "perplexed," Daniels opted not to testify and requested that the trial judge explain his Fifth Amendment rights to the jury.

When confronted with the erroneous judgment of conviction and Daniels's claimed reliance upon it when he exercised his right not to testify, the trial judge offered Daniels the opportunity to re-open the defense case and testify. The judge also suggested a proposed jury instruction to mitigate any perceived confusion that such out-of-order testimony might engender. After considering his options, Daniels again elected not to testify.

II.

On appeal, Daniels presents the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT DANIELS['S] MOTION FOR A JUDGMENT OF ACQUITTAL.

 

POINT II: THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED.

 

POINT III: THE TRIAL JURY [SIC] ERRED [IN] NOT GRANTING A MISTRIAL.

 

POINT IV: THE DEFENDANT MICHAEL DANIELS SHOULD BE GRANTED A NEW TRIAL BECAUSE HE WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT V: THE TESTIMONY IN THE FORM OF EXPERT OPINIONS CONSTITUTED AN UNDUE PREJUDICE TO THE DEFENDANT.

 

Our review of the record convinces us that none of these arguments is persuasive.

A.

Daniels's first point is bottomed on the contention that "there was a complete lack of evidence as to intent on the part of Michael Daniels to engage in the distribution of drugs." Moreover, "the only evidence that was introduced during the entire trial against Michael Daniels" was (1) "[h]e had in his possession one glassine envelope of heroine [sic]" and (2) [h]e was in a stairwell constituting the common area of a building along with two other individuals, co-defendants Mr. Kariam Sanchez and Mr. Charles Dunlap." We disagree.

On a defendant's motion for acquittal at the end of the State's case, the motion can be granted only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The motion must be denied if, "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its . . . favorable inferences . . . a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).

Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). "We give no consideration to evidence or inferences from defendant's case." Ibid. (citing Reyes, supra, 50 N.J. at 459).

Viewed under this lens, a rational juror could not be criticized for concluding that Daniels had more than just a passing interest in the drug trade happening in and around the stairwell where he was apprehended. Daniels was discovered in close proximity to co-defendant Sanchez who physically possessed forty-nine glassine envelopes of heroin the same type of packaging found in Daniels's hand and a significant amount of cash. The individuals were found in a cloistered staircase and appeared, at least to James, to be engaged in highly suspicious activities. We do not reject the possibility that a juror could reach the opposite conclusion; however, a Rule 3:18-1 motion is designed to preserve genuine factual disputes for ultimate jury determination. That is what happened here.

Sufficient circumstantial evidence existed to warrant a jury verdict in the State's favor on the intent to distribute and conspiracy charges. Again, any claim that Daniels was an innocent possessor of heroin without any connection to the drug-dealing activities of others was certainly within the realm of acceptance by the jury. However, it was not an inevitable result, as the opposite conclusion that Daniels was a willing participant in facilitating the distribution of heroin was fully supportable by the State's proofs. Accordingly, the trial court did not err in denying Daniels's motion for acquittal.

B.

Daniels next argues that the verdict was against the weight of the evidence. Initially, this argument is procedurally barred because Daniels did not move for a new trial on the ground that the verdict was against the weight of the evidence. See R. 2:10-1 ("the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"); State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006). Nonetheless, Daniels argues that we should review the matter in the interest of justice to avoid "a miscarriage of justice under the law."

Having reviewed the record and considered Daniels's arguments, we do not agree that the interests of justice would be served by consideration of the point because the State's proofs were particularly strong. See State v. Love, 245 N.J. Super. 195, 198 (App. Div. 1991) (the sufficiency of the evidence can be taken into account when deciding whether to consider a weight-of-the-evidence argument in the absence of a motion for a new trial). Moreover, we discern no plain error that would warrant our intervention.

C.

Daniels's third point challenges the denial of his motion for a mistrial when the judgment of conviction was found to be mistaken. Since the trial court never foreclosed Daniels from testifying, and was fully prepared to honor Daniels's due process rights, we are unable to conclude that a mistrial was mandated, even under these unusual circumstances.

The decision to grant or deny a mistrial rests within the sound discretion of the trial court. State v. DiRienzo, 53 N.J. 360, 383 (1969). A trial court "should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Our review of a trial court's discretionary decision to deny a mistrial motion is limited:

An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence. Thus, an appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice.

 

[Ibid. (internal citations omitted).]

Here, the trial court determined that it could cure any prejudice occasioned by Daniels's eleventh-hour epiphany by allowing post-summation testimony and giving the jury a curative instruction. Jurors are presumed to follow such instructions. See State v. Nelson, 173 N.J. 417, 478 (2002) (citing State v. Manley, 54 N.J. 259, 270 (1969)). The trial court implicitly determined that granting a mistrial was not required to prevent an obvious failure of justice. We find no reason to disturb the trial court's discretionary ruling denying defendant's motion for a mistrial.

D.

Daniels asks that we find his trial attorney's failure to discover that the judgment of conviction was erroneous constituted ineffective assistance of counsel. Such a claim is usually not considered in a direct appeal because it commonly implicates facts and circumstances that are not readily apparent from the trial record. Here, however, all of the relevant facts are known, and we elect to address the issue at this time.

The legal principles that govern our analysis of Daniels's claim are well-established. State v. Parker, 212 N.J. 269, 279 (2012). To prevail on a claim that he was deprived of the effective assistance of counsel, not only must Daniels overcome a "presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'The 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.'" Parker, supra, 212 N.J. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). This two-factor test was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 (2012).

Although "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal[,]" State v. Preciose, 129 N.J. 451, 460 (1992), here the allegation does not involve evidence that lies outside the trial record. See State v. Allah, 170 N.J. 269, 285 (2002).

Our review of the record convinces us that Daniels's attorney was not deficient in his representation regarding the judgment of conviction.2 Although he was aware of Daniels's reservations about the correctness of the document, what he viewed first-hand was a judgment of conviction that belied his client's shaky recollection. Defense counsel had a right to rely upon the judgment of conviction he reviewed, without double-checking it, as it appeared to all concerned at least until the end of the trial to accurately portray a portion of Daniels's criminal history.

As important, however, is the utter lack of prejudice to Daniels. The trial judge approached the error correction process very indulgently. He proposed a legally reasonable solution to the problem, which Daniels elected not to accept. Defense counsel cannot be faulted when there is no prejudice to Daniels and no evidence exists to suggest had Daniels elected an alternative course he would have fared better.

E.

Daniels's last point raises the propriety of the trial court's evidentiary rulings concerning James's testimony that what he witnessed in the stairwell was "a narcotics transaction . . . occurring." Contrary to the position taken at trial, Daniels does not suggest that State v. McLean, 205 N.J. 438 (2011) governs. Instead, Daniels now relies on State v. Reeds, 197 N.J. 280 (2009) for the proposition that James's statement invaded the jury's responsibilities in the determination of Daniels's culpability. We conclude that neither McLean nor Reeds is controlling because James's statement was rendered harmless by the trial court's deft curative instructions.

The scope of our review of the trial judge's evidentiary ruling is generally limited to ascertaining whether his discretion was mistakenly exercised, provided that the ruling is not inconsistent with applicable law. State v. Burns, 192 N.J. 312, 332 (2007) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). Error in the admission of evidence will not be deemed harmful if the weight of the evidence against a defendant is great. See State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (citing State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984), aff'd, 103 N.J. 169 (1986)), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005).

Asking whether the events James observed established a drug transaction was not a proper subject for lay opinion testimony. N.J.R.E. 701. Where the significance of a series of events "does not fall outside the ken of the jury," police officers may not state their opinion on what they observed. McLean, supra, 205 N.J. at 461. Without court approval to testify as an expert, police officers, like other lay witnesses, should be instructed to limit their testimony to matters about which they have personal knowledge.

Here, the trial judge recognized the error and immediately corrected it twice once before the State rested and then during final jury instructions. We presume the jury understood and followed the court's instructions. See, e.g., State v. Burris, 145 N.J. 509, 531 (1996) (stating that with regard to proper use of evidence, "the Court presumes that juries will understand and abide by the court's instruction").

In Reeds, the defendant was charged with constructive possession and the expert's opinion was stated in those terms. Reeds, supra, 197 N.J. at 284. The Court reasoned that the defendant "suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony usurped the jury's singular role in the determination of defendant's guilt and irredeemably tainted the remaining trial proofs." Id. at 300.

Here, James's offending comment did not opine on the ultimate issue in the case and furthermore, it had no capacity to influence the jury's exercise of principled deliberation. When viewed in light of the curative instructions provided by the trial court, the effect of Reeds becomes non-existent.

In summary, we find that none of Daniels's contentions is persuasive and we have no basis to change the outcome of the trial.

Affirmed.

1 After stating his experience as a police officer, including a recitation of his experience with drug trafficking, James testified that the conduct of the individuals entering and leaving the apartment building "confirmed that something was occurring inside the building." At this point in his testimony, James did not mention anything about illegal drugs.

2 Lest there be any misunderstanding, we only address the singular claim that defense counsel's failure to earlier discover the erroneous judgment of conviction was ineffective assistance of counsel. Any other claims of ineffective assistance of counsel are preserved for a proper application for post-conviction relief. R. 3:22-1.