STATE OF NEW JERSEY v. DIEDRA DENIERE CLARKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0599-03T40599-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIEDRA DENIERE CLARKE,

Defendant-Appellant,

________________________________

STATE OF NEW JERSEY, DOCKET NO. A-4307-03T4

Plaintiff-Respondent,

v.

MARLETTE LENERICE ROBINSON,

Defendant-Appellant.

________________________________

 

Submitted October 31, 2005 - Decided February 7, 2006

Before Judges A. A. Rodr guez and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 02-10-2502-I.

Yvonne Smith Segars, Public Defender, attorney for appellant Diedra Deniere Clarke (Jane M. Personette, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Marlette Lenerice Robinson (Patricia Nichols, Designated Counsel, on the brief).

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

PER CURIAM

Bergen County police arrested Diedra Deniere Clarke and Marlette Lenerice Robinson on April 20, 2002. The defendants were indicted on charges of first-degree possession of a controlled dangerous substance, marijuana, with intent to distribute, N.J.S.A. 2C:2-6, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(10)(a) (Count One) and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) and N.J.S.A. 2C:2-6 (Count Two). On May 6, 2003, their motion to suppress was denied. Their trial took place from May 7 to May 13, 2003, at the conclusion of which a jury convicted each of them on both counts.

On June 5, 2003 Robinson filed a motion for a new trial, in which Clarke joined. After a hearing, the trial judge denied the motion. On August 1, 2003, the trial judge sentenced defendants. He merged Count Two with Count One, and sentenced defendant Robinson to a flat sentence of twelve years, having found four aggravating factors and no mitigating factors. The aggravating factors included future risk, likelihood that defendant was involved in organized criminal activity, existence of a criminal record, and the need to deter. N.J.S.A. 2C:44-1. In addition, Robinson was ordered to pay a $3,000 DEDR penalty, $50 lab fee, $75 safe streets penalty, $1 probation transaction fee, and a $30 law enforcement training fund penalty: Robinson's driver's license was also suspended for six months.

The judge found three aggravating factors and one mitigating factor with regard to defendant Clarke. The aggravating factors consisted of future risk, likelihood that defendant was involved in organized criminal activity, and the need to deter; the mitigating factor was that Clarke had no prior indictable record, N.J.S.A. 2C:44-1, which the judge found was outweighed by the aggravating factors. He merged Count Two with Count One and sentenced Clarke to a twelve year flat sentence for the conviction on Count One of the indictment. In addition, Clarke was ordered to pay a $50 VCCB penalty, $75 safe streets penalty, $30 law enforcement training fund penalty, $3000 DEDR penalty, $50 lab fee, $1 probation fee and her license was revoked for six months. The defendants appealed. The cases were calendared back to back and we consolidate them for purposes of this opinion only.

The factual contentions in this case included the following.

On April 19, 2002, just after noon, defendants checked into the Congress Inn Motel located at 370 Route 46 West in South Hackensack. According to defendants' version of the facts, they were on their way from Ohio to Brooklyn, New York, having driven in a red Dodge Neon with Ohio license plates. Robinson, who paid $29 in cash to rent Room 101 for a period of six hours, had brought her dog, Frenchy, along on the trip from Ohio to New York.

Defendants alleged they traveled to New York in order to get their hair braided at a salon in Brooklyn. Robinson testified that because hair braiding involves a lengthy process, she thought it would be best to check into a motel in order to leave her dog there and not in the car. After checking into the Congress Inn Motel, Robinson noticed a sign that no pets were allowed in the rooms, but she nevertheless left Frenchy in Room 101 before leaving with Clarke in the Neon. At trial, Robinson claimed she never saw a red suitcase in Room 101.

Ronald Pfeffer, a desk clerk at the Congress Inn Motel, arrived at work at approximately 10:15 p.m. on April 19, 2002. Upon his arrival, he relieved the prior desk clerk, Don Blazina. As Blazina was preparing to leave for the night, he informed Pfeffer that guests at the motel had complained about a loose dog on the property. Blazina also informed Pfeffer that a red suitcase had been brought down to the clerk's office by the cleaning staff who had cleaned Room 101 after two female guests had not checked out at the scheduled time. Motel policy required all rooms to be cleaned before they were re-rented.

Finding the suitcase to be in his way in the office, Pfeffer decided to move it. As he picked it up by the handle, a large bundle tightly wrapped in duct tape fell out of the bag. He took the package and placed it back into the suitcase, but the suitcase and package were not secured.

At 11:28 p.m., Patrolmen Garris and Brando of the South Hackensack Police Department responded to the Congress Inn Motel to investigate a call about a stray dog. The call indicated that the dog was in the custody of a guest at the Congress Inn Motel named Martin, who was staying in Room 402. When the patrol officers arrived on the scene, they went to Room 402 and spoke with Martin. After speaking with Martin, the police informed him they would take the dog to the pound. Before leaving the hotel, however, the patrol officers went over to Room 101 where they believed the dog might have come from, but found the room locked and in darkness.

After finding no one in Room 101, Garris made his way to the motel office, where he encountered Pfeffer, who had been on the verge of calling the police himself regarding the suitcase in his office. When Garris entered the office, Pfeffer showed him the suitcase, and Garris noticed it was in an unsecured and open state. Its zipper was undone and its buckles were unfastened. Upon closer inspection, Garris observed what appeared to be a duct taped plastic bundle. He also recognized an odor of raw or unburnt marijuana coming from the suitcase.

At that point, Garris unzipped the suitcase further and observed two tightly wrapped bundles, which he believed through his education, experience, and training to be narcotics. As a result of finding the narcotics, Garris told Pfeffer to contact the police if anyone came to claim the suitcase, and then zipped up the suitcase and transported it back to headquarters in his patrol car. Before leaving, however, Garris also received a hotel registration card for Room 101 from Pfeffer that was in Robinson's name.

Once back at police headquarters, Garris called Detective Sergeant Kaiser, the detective on call. Garris advised Kaiser of the items he found as well as of the circumstances in which he had found them. Upon Kaiser's arrival at headquarters, he examined the items found and logged them into evidence. Kaiser then ordered the surveillance of the motel. At approximately 1:00 a.m., Kaiser called Patrolman Agar, and directed him to assist in an undercover surveillance operation. When Agar arrived at headquarters, he was advised that the surveillance would be conducted at the Congress Inn Motel, and more specifically Room 101. Kaiser and Agar drove to the motel in an unmarked police vehicle and parked on the north side of the motel parking lot, where they could see the office and Room 101. Garris and Brando also conducted surveillance at the motel but remained out of sight.

At approximately 2:30 a.m., a red Dodge with Ohio plates pulled into the motel parking lot. Robinson left the car and entered the motel office. When Robinson entered the office and encountered Pfeffer, she demanded to know the whereabouts of her dog and what had happened to her stuff. Robinson insisted to Pfeffer that earlier a woman in the motel told her it would be okay to keep the dog in the room.

Pfeffer, who was behind protective glass, told Robinson that he would call to find out where the dog was, and that he would get her bag; instead, however, he called the South Hackensack Police. Pfeffer told police that there was someone inquiring about Room 101. Kaiser and Agar received a radio transmission from police headquarters advising them that the females they were looking for were inside the motel office.

Robinson testified that Pfeffer kept attempting to unload the red suitcase on her, even though it was not hers. Eventually, she told Pfeffer that the bag was not hers. Robinson alleged she then walked outside to where Clarke was waiting in the Neon, and told Clarke to get in the driver's seat and turn the car around because it was blocking traffic. Clarke changed seats and was turning the car around when the police pulled up and arrested defendants.

Agar ordered Clarke to get out of the vehicle, at which point he conducted a quick search of the vehicle using a flashlight. Upon searching the vehicle, Agar found what he described as a brown "blunt" that smelled of marijuana. Based on his training, education, and experience, Agar concluded it was a marijuana cigarette.

After the police arrested defendants, they took them to police headquarters in patrol cars. Agar drove the red Neon back to headquarters, where he conducted a further search of the vehicle and found a box of plastic baggies on the back seat. The car contained no other luggage or bags of any kind.

Robinson testified that her luggage remained in the trunk of the Neon at the time of the arrest. On the morning of April 21, 2002, she was able to post bail and was transported back to police headquarters in order to retrieve her belongings from the impounded vehicle. Robinson testified that a police officer told her she could not take any of her luggage from the car because it was needed as evidence.

During the trial, Kaiser testified that no luggage was found in the car, but a letter from Enterprise-Rent-A-Car dated July 15, 2003, stated that the red Dodge Neon, which had been impounded by the New Jersey Police on April 20th, had been returned to Enterprise during the second week of May. The letter further stated that Robinson had come to the Enterprise office to retrieve her luggage during the third week of May.

A rental agreement for the vehicle was also found in the car's interior, along with directions from the Econo Lodge in Bronx, New York to Akron, Ohio, and another set of directions from the Alexander Hamilton Hotel in Paterson, New Jersey to an address in Brooklyn, New York.

Back at police headquarters, Kaiser gave both defendants Miranda forms, which he went over with them, but both refused to sign the forms. He interviewed Clarke first, who told Kaiser that she had traveled from Ohio to New Jersey, and that she had been an occupant of Room 101 at the Congress Inn Motel. Clarke said she had been in Brooklyn all day getting her hair braided.

During Kaiser's interview of Robinson, she told him that she and Clarke had come from Ohio to New York in order to get their hair braided. Robinson further stated that she had returned to the Congress Inn Motel and to Room 101 to retrieve her dog. When asked if she had a conversation with motel clerk Pfeffer with regard to her dog and her belongings, Robinson denied having such a conversation.

Kaiser testified that during his interview with Robinson, she claimed that she and Clarke went to different locations throughout New Jersey because Clarke was very familiar with New Jersey. She also told Kaiser that Clarke had left the hair braiding salon and that she had not seen Clarke for hours. Robinson denied at trial that she and Clarke had gone to numerous locations in New Jersey and that Clarke had left the salon. According to Kaiser, when asked about the red suitcase, Robinson wanted to know what defendant Clarke had said about the luggage, though on cross-examination Robinson denied ever saying this.

Kaiser transported the bundles found within the red suitcase to the State Police lab for testing. One bundle weighed 20.9 pounds and tested positive for marijuana; the second bundle weighed 11.8 pounds and tested positive for marijuana as well.

In the early morning hours of April 20, 2002, Officer David Danow of the Bergen County Police Department's Canine Unit received a call from the South Hackensack Police requesting his assistance in conducting a canine vehicle examination. Officer Danow used a dog from his unit to conduct a vehicle search of the red Dodge Neon. The dog responded by indicating a narcotics odor in the back seat of the vehicle. The vehicle, however, contained no further drugs.

Defendant Robinson asserts in her brief on appeal:

POINT I: THE LACK OF A VERBATIM RECORD OF THE PROCEEDINGS BELOW PROHIBITS DEFENDANT FROM EXERCISING HER CONSTITUTIONAL RIGHT TO APPEAL AND REQUIRES THAT THE MATTER BE REMANDED FOR A NEW TRIAL.

POINT II: THE STATE FAILED TO PRESENT A PRIMA FACIE CASE ON COUNT ONE OF THE INDICTMENT. (Not Raised Below)

POINT III: THE JURY CHARGE WAS INCOMPLETE, ERRONEOUS AND INHERENTLY PREJUDICIAL AND, HENCE, DEPRIVED DEFENDANT OF HER CONSTITUTIONAL RIGHTS AND CONSTITUTED A FUNDAMENTAL INJUSTICE. U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Par. 10. (Partially raised below)

POINT IV: ADMISSION OF EVIDENCE SEIZED DURING THE SEARCH OF THE RED SUITCASE AND CO-DEFENDANT'S RENTAL CAR VIOLATED DEFENDANT'S RIGHTS UNDER THE UNITED STATES AND THE NEW JERSEY CONSTITUTIONS, U.S. Const. Amend. IV, V, VI, XIV; N.J. Const. Art. 1, Par. 7, 10.

A. Removal of the bag by the maid.

B. Opening the Bag.

C. Fruits of the Poisonous Tree.

D. Chain of Possession of Alleged Evidence.

POINT V: THE STATE'S EXPERT'S TESTIMONY WAS IRRELEVANT, HIGHLY PREJUDICIAL AND BASED ON FACTS NOT IN EVIDENCE. (Not Raised Below)

POINT VI: PROSECUTORIAL MISCONDUCT BY INAPPROPRIATELY TRYING TO BOLSTER THE CREDIBILITY OF STATE WITNESSES VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL OF THE CONVICTIONS. (Partially Raised Below)

POINT VII: THE COURTS BELOW AND DEFENDANT'S INEFFECTIVE ATTORNEY VIOLATED HER CONSTITUTIONAL RIGHTS. (Not Raised Below)

Defendant Clarke asserts the following points in her brief on appeal:

POINT I: THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S REQUEST FOR A CLAWANS CHARGE.

POINT II: THE COURT BELOW COMMITTED PLAIN ERROR WARRANTING REVERSAL IN PERMITTING THE HEARSAY TESTIMONY OFFERED BY THE STATE'S WITNESS, RONALD PFEFFER.

POINT III: IN LIGHT OF THE HEARSAY TESTIMONY BELIEVED TO HAVE BEEN ELICITED DURING THE TESTIMONY OF PFEFFER, DEFENDANT HAS BEEN DISADVANTAGED ON THIS APPEAL AS A RESULT OF THE INCOMPLETE TRIAL RECORD.

POINT IV: THE HYPOTHETICAL POSED BY THE PROSECUTOR TO THE STATE'S EXPERT WITNESS VIOLATED THE ULTIMATE QUESTION BAR OF ODOM AND, THEREFORE, PREJUDICED DEFENDANT AND WARRANTS REVERSAL OF HER CONVICTION.

POINT V: DEFENDANT IS ENTITLED TO A FINDING THAT MITIGATING FACTORS SUBSTANTIALLY OUTWEIGH AGGRAVATING FACTORS AND TO BE SENTENCED ACCORDINGLY.

A. The trial court erred in finding only a preponderance of mitigating factors over aggravating factors.

B. Defendant is entitled to have her sentence reduced to that appropriate for a crime of one degree lower than that for which she was convicted.

We consider here the contention that trial testimony by the desk clerk Pfeffer violated the hearsay rule.

The standard of review for determining whether the trial judge properly admitted the testimony into evidence is plain error. Under this standard, we will not reverse an error which was not been brought to the trial court's attention, unless the appellant shows plain error. R. 2:10-2. Plain error is error "clearly capable of producing an unjust result." R. 2:10-2. The plain error standard is appropriate here because at the trial level counsel did not object to the admission of the testimony.

In considering whether it was plain error for the trial court to admit the testimony of Pfeffer, we note that according to the reconstructed record, Pfeffer testified that "[h]e arrived at work at approximately 10:15 p.m. on April 19th. As was his custom, Pfeffer arrived early and relieved the prior desk clerk, Don Blazina. As Blazina prepared to leave for the night, he advised Pfeffer that other guests at the motel had complained about a dog that was loose on the property. Blazina also noted that the red suitcase located in the clerks' office had been brought there by the maid who had cleaned room 101 after two female guests had not checked out of their room at the scheduled time."

N.J.R.E. 801(c) defines "[h]earsay [as] a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Under N.J.R.E. 802, "[h]earsay is not admissible except as provided by these rules or other law."

Clarke argues that Pfeffer's testimony concerning how the maid found the red suitcase in the room rented by Robinson was inadmissible hearsay. She relies on the proposition expressed in State v. Branch, 182 N.J. 338 (2005), that "the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant . . . ." Branch, supra, 182 N.J. at 350. Clarke argues that while Pfeffer is not a police officer, the principles of Branch still apply to his testimony. She contends that through Pfeffer's testimony the jury was able to learn that another party had found incriminating evidence.

The State in its brief admits that the testimony of Pfeffer, in which he related what the previous desk clerk Don Blazina told him, was hearsay. The State, however, argues that it met its burden of proof concerning the fact that Clarke possessed marijuana through other evidence produced at trial. The State argues that the facts presented at trial and the reasonable inferences that flow from these facts clearly prove defendant's guilt. The facts the State specifically points to are: (1) the testimony of Garris with regard to learning of the suitcase and that it came from Room 101; (2) the testimony of Pfeffer regarding his conversation with Robinson about her dog and her "stuff"; and (3) the testimony of Kaiser relating that he found the key to Room 101 in defendant Robinson's possession, and that when he asked defendant Robinson about the red suitcase, she wanted to know what defendant Clarke had said about it.

In order to determine if the admission of the hearsay testimony was plain error, we must consider whether its admission led to an unjust result. R. 2:10-2. Moreover, the error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. Pressler, Current N.J. Court Rules, comment on R. 2:10-2 (2005). Since the State concedes that Pfeffer's testimony concerning what Blazina told him was hearsay, the question then, in this case, is whether the exclusion of the hearsay testimony would have caused the jury to reach a different verdict.

In these circumstances, we need not address the issue as to whether the reach of the Confrontation Clause concerns referred to in State v. Branch, 182 N.J. 338 (2005) and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) extend to the present facts. We note, however, that here, the source of the hearsay was not a police officer, and the testimony was not admitted pursuant to a recognized hearsay exception. Our inquiry is whether the erroneous admission of this hearsay was plain error.

Based on the facts recited above concerning what happened on the night of April 20, 2002, we conclude that it was plain error to admit the hearsay testimony. The Garris testimony established that the police found the red suitcase filled with marijuana at the Congress Inn Motel and that the suitcase was in the possession of Pfeffer. The testimony of Pfeffer, stripped of the hearsay content, shows that defendant Robinson inquired about her dog and her "stuff" when she came back to the Congress Inn Motel. The testimony of Robinson, Agar, and Garris linked Clarke to Robinson. The testimony of Kaiser testified to what Robinson had stated during her interview.

This testimony supports the State's position to a certain distance: that defendants rented a room at Congress Inn Motel, that the room was Room 101, and that the key to Room 101 was in Robinson's possession. Additionally, it provides direct evidence that police found a suitcase at the Congress Inn Motel filled with marijuana, that defendants apparently had no other luggage with them, that in their car certain drug paraphernalia was present, as well as residual drug odor.

Without the testimony of Pfeffer concerning what Don Blazina told him about the suitcase and that it came from Room 101, however, there is no direct evidence of a link between defendants and the suitcase. Not only did this error constitute a hearsay violation, it put the drugs in defendants' hands and allowed the State to press its thumb on the scales of justice.

Noting the virtually irremediable prejudice to both defendants that was inherent in the erroneously admitted hearsay, which as we say did no less than put the drugs in their hands, and applying State v. Pillar, 359 N.J. Super. 249 (App. Div.), certif. denied, 177 N.J. 572 (2003) (illustrating what constitutes harmless errors), we are "unable to conclude beyond a reasonable doubt that . . . [the error] did not contribute to [their] conviction." 359 N.J. Super. at 280.

As a result of the significant prejudice, we find that there was plain error, reverse the convictions appealed from, and remand for a new trial. In view of this disposition, it is unnecessary to address the remaining points raised on this appeal.

 
Reversed and remanded.

This testimony, however, defendants argue is contradicted by Garris' police report written on May 7, 2002, that states "this officer then checked the name tag on the suitcase and found it to be blank. This officer then opened the unlocked suitcase and observed two large tightly wrapped bundles . . ."

This reconstruction was made because the transcript of this portion of the proceedings was missing, and it is set forth in a letter written by Thomas S. Kearney, Assistant Prosecutor. Francis P. Meehan, Clarke's counsel, agreed with Assistant Prosecutor Kearney's recollection.

(continued)

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A-0599-03T4

February 7, 2006