STATE OF NEW JERSEY v. ANTON PETTWAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0027-04T427-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTON PETTWAY,

Defendant-Appellant.

________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-11-2169.

Yvonne Smith Segars, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried before a jury, defendant was convicted of third degree distribution of cocaine under N.J.S.A. 2C:35-5(b)(3) and distribution of cocaine to an undercover officer within 1,000 feet of school property under N.J.S.A. 2C:35-7. At sentencing, the trial judge merged the two convictions. Defendant was sentenced to four years in prison with a mandatory three-year period of parole ineligibility. Fines and costs totaling $1,205 were also imposed.

The case against defendant was tried over the course of two days. According to the testimony of the State's investigating officers, Hackensack Detectives Scott Sybel and Anthony Ferraioli, on March 14, 2003, sometime between 5:00 p.m. and 5:15 p.m., they received information from an informant that a person in light blue sweatpants, a red and blue jacket, and a red and blue baseball cap was selling drugs in the area of Railroad and Central Avenues. Based on that information, the two detectives drove to the area in an unmarked vehicle at about 5:00 p.m. Upon their arrival, they observed defendant, who they knew, standing on the corner. They returned to the police station and met with Paterson Detective Jeffrey Robinson. Robinson was assigned to the Hackensack Police Department as part of an undercover operation that used officers from neighboring jurisdictions to engage in undercover drug buys. This approach minimized the likelihood that an undercover officer's identity would be exposed. Robinson was given $10 to attempt to purchase drugs and was directed to the location where the two detectives had observed defendant. Sybel and Ferraioli also returned to the area and positioned themselves across the street from defendant's location.

Robinson approached Pettway and asked, "was he on," street terminology meaning "are you dealing, do you have anything to sell?" Defendant replied, "How many?" Robinson told defendant he only had $10. A few seconds later, defendant disappeared down the block. He returned shortly and handed Robinson a bag of suspected crack cocaine.

Robinson left the area and returned to police headquarters where he met Sybel and Ferraioli. He turned over the suspected crack cocaine, which was marked with Sybel's initials. Sybel then showed Robinson a photo. Robinson recognized the photo as that of defendant, the person from whom he had just purchased the suspected drugs. Robinson initialed and dated the photo, which was later introduced as evidence during the trial. On May 7, 2003, defendant was arrested in connection with the drug sale to Robinson.

Pettway testified that on the evening in question he had been in the area of 242 Stanley Street, Hackensack, for a family gathering. While walking home, he saw Detectives Sybel and Ferraioli, who he knew from the neighborhood, drive by him in an unmarked car. They made a U-turn, pulled alongside him, looked at him, and then pulled off. At that point, defendant believed it was a case of mistaken identity. He did not see Sybel and Ferraioli again that evening. He did not know Detective Robinson and denied selling any drugs to him.

When the testimonial stage of the trial concluded, the judge immediately charged the jury. He completed his instructions just before lunch and recessed. Before releasing the jurors, he instructed them not to talk about the case with anyone and to only discuss the case in the jury room.

The jurors commenced their deliberations after lunch. At 3:30 p.m., the jury sent a note to the judge requesting the definition of "beyond a reasonable doubt." They were brought back into the courtroom at 3:35 p.m. and reinstructed on the burden of proof and the meaning of "beyond a reasonable doubt." The jury resumed deliberations at 3:45 p.m., and at 4:01 p.m. they returned to the courtroom where the foreperson announced that the jury had found defendant guilty of both counts of the indictment. The judge asked defense counsel whether he wanted the jury polled and defense counsel said, "No sir." The jurors were thanked for their service and were instructed about discussing the verdict or their deliberations. The judge then requested that the jurors wait for him in the jury room because he wanted to thank them personally.

Once the jurors left the courtroom, there was a short application from the prosecutor to revoke defendant's bail. Defense counsel objected, and following a brief argument, defendant's bail was revoked. The proceedings concluded at 4:07 p.m. Twelve minutes later, the judge went on the record and the following colloquy took place:

THE COURT: The record will indicate we're back on the record.

I am informed after the trial, after the jurors returned to the jury room and I just went to see if anybody needed a letter for work and to thank them as they left, I'm presented with -- I heard now I'm presented with a card.

Apparently this was the situation as presented to the court. One of the jurors presented to a female companion of the defendant --

[DEFENSE COUNSEL]: I think the juror -- the information I received, Judge, is that one of the jurors gave the card directly to Mr. Pettway.

THE COURT: Oh. Okay. One of the jurors gave a card. Now it's not a business card. It's a three by five card. On the outside it says, "You'll never be alone in the sorrow that you bear."

Then inside, "God is with you always. In sympathy and prayer."

On the card is written, "If you have children, please" underlined "think about their future. Get an honest job. I'm sure that you can, because you are a very intelligent young man. I think you are not guilty. You are a victim of the circumstances." Then there's something on the left that says "Be strong."

Defendant was placed back on the stand. He advised the judge that juror number three gave him the note and $10 during the lunch recess. The juror also told him that she did not think he was guilty and to stay strong. Defense counsel explained that defendant did not bring the note to his attention until the judge informed counsel and defendant that the jury had reached a verdict. Defense counsel further indicated that he had no explanation why defendant failed to report the incident earlier. He pointed out, however, that despite the timing, defendant disclosed the information before defendant knew the outcome of the verdict. Defense counsel then moved for a mistrial.

In response to the motion, the court advised counsel that he was going to question juror number three. She was immediately returned to the courtroom and the following discussion took place:

THE COURT: Would you come on back to your chair. Miss Chavarria, you know when we started everyone took an oath you're going to perform your duties as a juror. The defense is telling me now that you gave a card to the defendant. Is this the card?

JUROR: Yes.

THE COURT: You heard right at the beginning and every time we broke for coffee or for lunch or at night that no one is permitted to speak to you. You're not permitted to talk to the attorneys or anyone involved with the trial. You're not to read any newspaper or other media accounts of the trial. So you violated that order that I gave by doing this card. You understand that? You weren't supposed to have any communication with anybody, especially the defendant, in this case. I just want to make sure this is your writing.

JUROR: Yes, because I did it because I work with abused and people with problems. I'm sorry but I think that was good to make him some strong words for the thing he's going to pass now. In any moment I thought I was doing something wrong with that.

THE COURT: Well, it was wrong. Now I have to decide what action I'm going to take as a result of it. But this could have destroyed all the work we did with this trial when I told you no communication. You're not permitted to talk to the attorneys, anyone connected with the trial. If anybody approaches you or attempts to speak with you about this case you are to report it immediately to the sheriffs and you went and violated that order.

You understand that's what you did by giving this card to the defendant? All right. Go back downstairs.

JUROR: Sorry. Really sorry.

The court granted the prosecutor's request for a five minute break to research the issue. Once court resumed, the prosecutor asked the judge to individually question the remaining jurors. Defense counsel did not join in this application. The judge declined to do so and reserved decision on the mistrial application. Three days later, the court conducted further proceedings on the application and at that time, over the objection of defense counsel, determined that juror number three should be brought back for further questioning.

In objecting to the court's decision to conduct further questioning, defense counsel argued the moment juror number three violated the judge's no-contact order, she became an ineligible juror and to bring her back a week later to conduct a voir dire was prejudicial to defendant. Defense counsel also noted that the case was a one-day trial and retrial would not pose a substantial problem for the State.

The prosecutor argued that defense counsel knew about the card before the jury verdict was announced, and once announced, did not request that the jury be polled. In light of this conduct, the prosecutor opposed the application and argued that defendant, by his conduct, created the problem and that the judge's proposal to voir dire juror number three was appropriate. The prosecutor also again suggested that all the jurors be brought back for voir dire if the court deemed it necessary.

The judge ordered that juror number three be brought back for further questioning. The questioning took place three days later in the judge's chambers. Counsel was present when the following exchange was placed on the record:

THE COURT: Miss Chavarria, you were juror number three on this panel for the trial?

JUROR: Yes.

THE COURT: I want to thank you for coming this afternoon. I just have to complete the record and that's why we asked you to be here.

You sat on the jury and the jury returned a unanimous verdict of guilty. Did you agree with that verdict when it was given?

JUROR: Yes.

THE COURT: That's what I want to know. Yes or no. You did agree with the verdict when the jury rendered its verdict?

JUROR: Yes.

THE COURT: All right. And the reason why we asked you to come here was because before the jury began its deliberations you had presented sort of a greeting card to him?

JUROR: Yes.

THE COURT: Where you said in the card you believed he was not guilty?

JUROR: Yes. I say for me, in the card I say for me he's not guilty. We not deliberate at that time.

THE COURT: That was before deliberations?

JUROR: Yeah.

THE COURT: But during the deliberations you agreed with the jury?

JUROR: Yes.

THE COURT: That he was guilty of the charge?

JUROR: Yes. Especially because he's doing the things close to the -- I explain to them, close to the school where the childrens (sic) are.

THE COURT: Okay. I don't think you ought to tell us what your thinking was.

JUROR: Yeah. I say yes. I think yes. When I make the card to him I was thinking he's not guilty because he's victim of the circumstances. Maybe it's difficult to understand what I have in my mind.

THE COURT: I cannot intrude upon your thinking or the jurors' thinking. So I don't want to go into that area.

JUROR: Yes.

THE COURT: I don't think it's appropriate. Just that you agreed with the verdict when the jury made its verdict, is that correct?

JUROR: Yes.

THE COURT: You agreed that he was guilty of the charge?

JUROR: Yes.

THE COURT: I didn't ask the prosecutor or defense attorney earlier. Prosecutor, do you have any questions? If you do you address it to me.

[PROSECUTOR]: Just regarding whether there was any communication between the other jurors regarding the incident with the card. That's all.

THE COURT: Okay.

Did you mention to the other jurors about giving the card to the defendant?

JUROR: To the people was with me? Yes, sure. Because they asked me when I come back to the room what happened and I say I made some card for the person. I did.

THE COURT: Did you talk to them about the card before the jury rendered its verdict?

JUROR: No.

THE COURT: It was only after after verdict?

JUROR: That was after you call me there and I come back. Not before.

THE COURT: All right. Thank you. [Defense Counsel], is there anything, any inquiry you would like me to make of the juror?

[DEFENSE COUNSEL]: I guess, Judge, just whether she feels, without disclosing the specifics of the deliberations, whether she feels she was able to conduct the jury or engage in the jury deliberations freely and fairly as your Honor instructed.

THE COURT: I don't know if that's an appropriate question.

[DEFENSE COUNSEL]: If your Honor feels it's not appropriate I'll withdraw it.

I don't have any other questions.

THE COURT: Okay. All right. Rosa Chavarria, thank you very much.

JUROR: I'm sorry again.

THE COURT: I know.

JUROR: Really sorry.

THE COURT: You are excused. Thank you very much for coming today.

JUROR: Thank you.

THE COURT: Go right out.

JUROR: Thank you very much.

THE COURT: Good day.

JUROR: Thank you.

The judge then denied defendant's application for a mistrial.

Defendant raises the following points on appeal:

POINT I

THE DENIAL OF DEFENDANT'S REQUEST FOR A MISTRIAL BASED ON JUROR MISCONDUCT CONSTITUTED ABUSE OF DISCRETION.

POINT II

IT WAS PLAIN ERROR FOR THE JUDGE TO HAVE FAILED TO VOIR DIRE ALL THE JURORS TO ASSESS WHETHER THE JURY HAD BEEN TAINTED (NOT RAISED BELOW).

POINT III

THE CONVICTION MUST BE REVERSED BECAUSE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).

A. COUNSEL OPENED THE DOOR TO HEARSAY EVIDENCE THAT WAS IRREPARABLY PREJUDICIAL TO DEFENDANT.

B. DEFENSE COUNSEL FAILED TO OBJECT TO TESTIMONY THAT WAS PREJUDICIAL TO DEFENDANT.

C. DEFENSE COUNSEL FAILED TO MOVE FOR A WADE HEARING WITH RESPECT TO THE PHOTOGRAPH IDENTIFIED BY THE UNDERCOVER POLICE OFFICER AT THE POLICE STATION.

POINT IV

THE HEARSAY ADMITTED AT TRIAL WAS PLAIN ERROR.

POINT V

IT WAS REVERSIBLE ERROR TO ADMIT THE EVIDENCE OF THE PHOTOGRAPH OF THE OUT-OF-COURT IDENTIFICATION BECAUSE IT WAS PREJUDICIAL.

POINT VI

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CRIMINAL CONVICTION (NOT RAISED BELOW).

POINT VII

THE SENTENCE IMPOSED WAS EXCESSIVE.

We have carefully considered defendant's arguments and conclude that none warrant reversal of his conviction and sentence. With the exception of defendant's arguments concerning Points I, II, and III, his remaining arguments are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

We start our analysis by acknowledging that the very essence of a defendant's right to a fair trial requires the preservation of an impartial jury throughout the trial, which includes the deliberative process. State v. Williams, 93 N.J. 39, 60 (1983). Consequently, jury misconduct that in any way has the capacity to compromise that right may constitute grounds for a mistrial. State v. Hightower, 146 N.J. 239, 266-67 (1996). Although not every instance of jury misconduct warrants a mistrial, the trial judge is required to "make a probing inquiry into the possible prejudice caused by any jury irregularity when an allegation of jury misconduct is raised." State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div. 1997), certif. denied, 151 N.J. 466 (1997). The precise manner the trial judge selects to investigate the allegation is left to the sound discretion of the judge, but it must be done on the record and must be sufficiently probing and adequate to preserve appellate review. Ibid. If, after conducting the investigation, the court is satisfied that jury misconduct has occurred, then it is the judge's responsibility to determine whether the misconduct had the capacity to lead the jury to make conclusions contrary to the legal proofs. State v. R.D., 169 N.J. 551, 558-59 (2001). In the absence of finding an abuse of discretion, a trial judge's decision to grant or deny a mistrial application due to jury misconduct will be upheld on appeal. State v. Harvey, 151 N.J. 117, 211 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

The record discloses that the trial judge questioned juror number three on two occasions, once immediately following the verdict and then a week later. The juror admitted that, in addition to giving defendant the card and money, she told defendant she believed he was not guilty. She also told the judge that her position as to defendant's innocence changed during deliberations. Finally, in response to the judge's question as to whether she had discussed the matter with the other jurors, she told the judge that she did so only after the judge called her back to the courtroom to question her.

The judge did not fully explore everything the juror wrote on the card, including her suggestion to defendant that he get an "honest job", which defendant argues is inconsistent with a belief that defendant was innocent of the charges. It is nonetheless apparent from the record that the judge concluded the juror's conduct did not taint the integrity of the trial. See R.D., supra, 169 N.J. at 558-61. See also Pressler, Current N.J. Court Rules, comment 2.2 on R. 1:16-1 (2006). The juror's exchange with defendant did not inject extraneous influences into the deliberative process. Hightower, supra, 146 N.J. at 653, 658-59 (juror in capital case told other jurors during deliberations that victim had three children); State v. Adams, 320 N.J. Super. 360, 365, 368-69 (App. Div. 1999), certif. denied, 161 N.J. 333 (1999) (juror reported that a police officer relative told her police often beat accused criminals). Furthermore, at the time juror number three spoke to defendant, deliberations had not commenced. Defendant was still presumed innocent. Consequently, at the point of the juror's contact with defendant, it was not improper for her to continue to believe that defendant was not guilty of the charges. See Model Jury Charges (Criminal), Presumption of Innocence (1992).

It is also apparent that the judge found credible the juror's unsolicited explanation that it was not until she engaged in the deliberative process that her view of defendant's innocence changed. The judge's opportunity to observe the juror during his questioning is entitled to deference. State v. Farmer, 366 N.J. Super. 307, 319, (App. Div. 2004), certif. denied, 180 N.J. 456 (2004). While her contact with defendant clearly violated the judge's instructions, we do not find that the nature of her contact compromised the defendant's right to a fair trial. R.D., supra, 169 N.J. at 559. Nor do we find that the juror's actions had the capacity to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. Scherzer, supra, 301 N.J. Super. at 486; Hightower, supra, 146 N.J. at 266-267 (citing Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).

Finally, we note defendant's conduct militates against the conclusion that the trial judge abused his discretion in denying the mistrial motion. The judge found that defendant was approached by juror number three not only prior to the commencement of deliberations but more than three hours before the verdict was reached. Yet, defendant chose not to disclose this encounter until just before the verdict was announced. Had the judge been promptly notified of the juror's actions, the judge could have considered whether seating an alternate juror was an appropriate course of action. Defendant's conduct deliberately removed this option from consideration and set the stage for the court to consider only the defendant's option of choice, a mistrial. The grant of a mistrial is an extraordinary remedy. Its purpose is to prevent a manifest injustice and should be granted only when an error cannot be remedied by an instruction to the jury or some other curative action. State v. Winter, 96 N.J. 640, 646 (1984). It should not be granted solely because it is the option of choice of the defendant.

We next examine defendant's claim that the trial judge committed reversible error when the judge failed to individually question the remaining jurors and defendant's claim of ineffective assistance of counsel. Because these contentions were not raised at trial, they must satisfy the more exacting "plain error" standard of appellate review. State v. Bey, 112 N.J. 45, 63 (1988). The error must be so significant that it raises reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. See R. 2:10-2; Scherzer, supra, 301 N.J. Super. at 487-88.

We respectfully disagree with the trial judge's conclusion that it would have been improper to question the entire jury panel. R.D., supra, 169 N.J. at 561-562. Nonetheless, given our conclusion that the nature of the juror's misconduct did not involve extraneous influences or demonstrate that the juror had prematurely determined defendant's guilt, we do not find that the judge's failure to expand his questioning to all of the jurors led the jury to a result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 336 (1971).

We next address defendant's claims of ineffective assistance of counsel. Such claims are more appropriately raised in collateral, post-conviction relief proceedings "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Where, as in this matter, the trial record includes all of the facts necessary to consider defendant's claim, consideration on direct appeal is not prohibited. State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).

Claims of ineffective assistance of counsel are generally governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and have been adopted by our Court in interpreting the New Jersey Constitution. See State v. Allah, 170 N.J. 269, 283 (2002); State v. Fritz, 105 N.J. 42, 58 (1987). To be entitled to a new trial based on ineffective assistance of counsel, a defendant must make a two-part showing. First, it must be demonstrated that counsel's performance was deficient. This requires proof that counsel's errors were so significant that counsel ceased to function in accordance with guarantees extended to a defendant by the Sixth Amendment. State v. Orlando, 269 N.J. Super. 116, 135 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994). Second, a defendant must show that the deficient performance was prejudicial. This means that the errors were of such magnitude that defendant was not only deprived of a fair trial but of a trial whose result could be accepted as reliable. Strickland v. Washington, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant contends that defense counsel opened the door to inadmissible testimony about the confidential informant. Further, he argues that defense counsel failed to properly object to prejudicial testimony from Detective Sybel. Finally, defendant contends defense counsel should have requested that a Wade hearing be conducted.

When the prosecutor objected to defense counsel's reference to the confidential informant in his opening, defense counsel explained that he did so to rebut the suggestion in the prosecutor's opening that the officers just happened to be in the area of Railroad and Central Avenue when they drove past defendant. It appears, although the judge never made a specific finding to this effect, that it was part of the defense strategy to raise the prospect that the officers targeted defendant, especially since, contrary to the informant's tip, they observed no illegal activity when they drove past him. In hindsight, this strategy may be questionable. We are, however, reminded that the adversarial process should not be undermined by placing too much emphasis on hindsight. State v. Harris, 181 N.J. 391, 431 (2004), cert. denied, ___ U.S. ___, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). There was evidence before the jury that Sybel and Ferraioli had known defendant for quite some time and that there was no surveillance or taping of the alleged exchange between Robinson and defendant. Therefore, we can not say, on this record, the defendant has overcome the presumption that suggesting to the jury the two detectives were targeting him was not sound strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

Similarly, defense counsel's failure to object to testimony that Sybel had spoken to defendant hundreds of times before March 14, 2003, does not warrant reversal of defendant's conviction. Defendant testified that he knew Sybel from growing up in Hackensack. While he disputed the number of times he spoke with Sybel over the years, he acknowledged that they had engaged in conversations. Defendant also testified, without dispute, that he had no prior criminal record. Thus, defendant's testimony belied any possible inference that his interaction with Sybel was because of defendant's prior criminal history.

Finally, in our view, the factual record did not compel a Wade hearing even if defense counsel had made such a request. State v. Oates, 246 N.J. Super. 261, 269-270 (App. Div. 1991) While single-photo displays are deemed suspicious, the test is whether the identification resulted from the witness' acquiescence in the suggestion apparent in a single-photo display. Manson v. Braithwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53 L. Ed. 2d 140, 155 (1977). The key to determining the validity of the identification is the degree of reliability. State v. Janowski, 375 N.J. Super. 1, 10-11 (App. Div. 2005). This determination is made by considering the totality of the circumstances including the "opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation." State v. Madison, 109 N.J. 223, 239-40 (1988) (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

By defendant's own testimony, there is no dispute that he was in the area of Railroad and Central Avenue on March 14, 2003, around 5:15 p.m. The alleged encounter between defendant and Robinson, albeit not the actual distribution of drugs, was witnessed by two officers who had known defendant for years. Likewise, Detective Robinson, a narcotics officer, was directed to the location for the specific purpose of attempting to make a drug purchase from the person bearing the clothing description given to him. His encounter with defendant, although brief, was specifically focused on both purchasing drugs and observing the person from whom the drugs were purchased. He identified defendant from a photograph less than ten minutes after the encounter. Consequently, in the absence of a Wade hearing or if a Wade hearing had resulted in the suppression of the photographic identification, there were independent grounds for the identification. Oates, supra, 246 N.J. Super. at 269-270. See also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972); State v. Thompson, 59 N.J. 396, 414-15 (1971); State v. Zarinsky, 143 N.J. Super. 35, 58 (App. Div. 1976), aff'd, 75 N.J. 101 (1977).

 
Affirmed.

(continued)

(continued)

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