STATE OF NEW JERSEY v. FREDDIE KING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3152-07T43152-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDDIE KING,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 15, 2009 - Decided

Before Judges Carchman and Lihotz.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 05-06-0874.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William J. Sweeney, Designated

Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (John R. Cascarano,

Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Freddie King was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of heroin in a quantity of less than one-half ounce with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree distribution of heroin in a quantity of less than one-half ounce, N.J.S.A. 2C:35-5a(1) and -5b(3); and third-degree distribution of heroin within 1,000 feet of school property, N.J.S.A. 2C:35-7. After appropriate mergers, the trial judge sentenced defendant to an aggregate term of ten years imprisonment with five years of parole ineligibility together with statutory penalties, assessments and license suspension. Defendant appeals, and we affirm.

The facts related to the charged offenses are simply stated. On April 8, 2005, Jersey City Police Sergeant Michael McNally, a twenty-year veteran of narcotics investigations, was conducting a surveillance at the Booker T. Housing Projects in Jersey City, when at 10:40 a.m., he

observed a white male wearing a black waist length jacket really faded blue jeans, and he was carrying a black plastic bag. And he was com[ing] from the west on Bright Street walking eastbound on the south side of Bright Street.

As he crossed Fremont and began approaching the front entrance to Bright Street, I saw him greet a black male standing in front of the main entrance way, the Bright Street entrance, into the Booker T Housing Projects. The black male had on a black leather jacket and some kind of team patches all over the jacket. I believe they were a baseball team. I don't know if it was major league or Negro league team patches. He was standing right there. They greeted each other warmly.

After identifying defendant as the "black male," the Sergeant continued

I observed the white male, who was later identified as Michael Verdin [sic], raise his hand up, finger, as if saying one. At that time he produced green currency. Mr. King took the green currency and nodded to him and entered into Bright Street, more specifically the Bright Street entrance more specifically, 86 Fremont.

During this time, McNally was parked "[d]irectly across the street," some 30 to 35 feet away from defendant and Verdon, with no obstructions to his view.

According to McNally, defendant reemerged from inside 86 Fremont Street in "[a]bout a minute, maybe a little less." Defendant then "walked back out to the sidewalk where Mr. Verdin [sic] was standing, and dropped a small item into his hand." Verdon had been waiting with his palm up to accept the delivery. Verdon then cupped his hand, and he and defendant "tapped fists as if like shaking hands." Verdon proceeded walking eastbound on Bright Street, while defendant left walking westbound. After defendant crossed Bright Street to the other side, McNally lost visual contact with him.

McNally then radioed his perimeter units with descriptions and directions of travel of Verdon and defendant, believing that he had just witnessed a narcotics transaction. He positively identified both individuals after he was alerted that they had been stopped. 86 Fremont Street is within 1,000 feet of school property the Hudson County Vo Tech High School.

The perimeter unit of the surveillance operation was manned by Officer Terrance Doran, a twelve-year veteran of the Jersey City Police Department. According to Doran, he received a radio transmission from Sergeant McNally at approximately 10:45 a.m. that day. As a result of that transmission, he and his partner stopped Verdon just east of the location where McNally had witnessed what he believed was a narcotics transaction. Verdon "voluntarily surrendered one glassine bag of heroin from his left front pants pocket. He reached in and gave it to me." Doran positively identified that glassine bag in the courtroom.

Doran placed the bag into his pocket, placed Verdon under arrest, and searched him. The search revealed only "a black shopping bag . . . that had food and soda in it." After securing Verdon in their unmarked vehicle, Doran and his partner proceeded westbound. Doran's partner parked the vehicle and stayed with Verdon, while Doran entered into the courtyard of the Montgomery Projects and met up with two other police officers. The three officers observed defendant, who matched the description that McNally had given them, walk out of the front door of 567 Montgomery Street. They walked up to him and placed defendant under arrest. A pat-down of defendant by Doran yielded nine dollars in cash in the form of a five-dollar bill and four singles.

The State produced a forensic expert, Leah King, who established that the drugs recovered by the officers tested positive for heroin.

Relevant to his various claims on appeal, we now relate the facts related to defendant's competency. Following his arraignment, defendant participated in a series of status conferences, at which time he demanded that his attorney "have a complete psychiatric evaluation done of him." His attorney reported that "he's indicated to me that there would be repercussions for me if I do not do so." Defendant also insisted on transcripts of every court proceeding as well as independent lab testing of every bag of heroin that had ever been seized from him. At a status conference of April 10, 2007, defendant refused to sign plea papers, asserting that he did not understand what the attorney was talking about.

As to the request for a psychiatric workup, the judge denied the request and noted that defendant had sent the judge a cogent, well-written letter. The judge concluded that based on her observations as well as defendant's letter, defendant was clearly competent, and she denied the application for a competency exam. This appeal followed.

On appeal, defendant raises the following issues:

POINT I IT WAS ERROR NOT TO CONDUCT A COMPETENCY

HEARING PRIOR TO TRIAL THEREBY DENYING

DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE

PROCESS AND A FAIR TRIAL.

POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S

MOTION FOR A NEW TRIAL.

POINT III DEFENDANT'S RIGHT TO A FAIR TRIAL WAS

COMPROMISED BY INEFFECTIVE ASSISTANCE OF

COUNSEL (NOT RAISED BELOW).

A. Defense Counsel's Performance was

Deficient.

1. Failure to Develop Expert Testimony

Regarding the Diminished Capacity

Defense.

2. Lack of Preparation in Presenting

Defendant's Motion for a Retrial to

the Trial Court.

3. Failure to Adequately Conduct an

Investigation into the Identity of

a Witness.

4. Failure to Object to the Lack of a

Statement of Reasons and Balancing

Analysis by the Trial Court and

Failure to Argue on Behalf of a

Finding under N.J.S.A. 2C:44-1b(4)

and (11) Based on Defendant's

Diminished Capacity.

B. Defendant Freddie King was Prejudiced

by Counsel's Errors.

POINT IV DEFENDANT'S SENTENCE WAS BASED ON AN

INCOMPLETE PRESENTENCE REPORT.

POINT V DEFENDANT'S SENTENCE WAS MANIFESTLY

EXCESSIVE.

We address the issues seriatim.

Defendant first asserts that he was entitled to a psychiatric evaluation and competency hearing. A trial court must hold a competency hearing, even when not requested, where the evidence raises a bona fide doubt as to a defendant's competence. See Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815, 822 (1966); see also N.J.S.A. 2C:4-4. "Where a defendant demonstrates a history of psychiatric problems and a current thought disorder, creating a reasonable basis to question his or her competency to stand trial or to raise a defense . . ., the court is obligated to conduct a further inquiry either by appointing counsel or directing that a psychiatric examination be conducted." State v. Ehrenberg, 284 N.J. Super. 309, 315 (Law Div. 1994). Evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial would all be relevant in determining whether further inquiry is required. See Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975).

N.J.S.A. 2C:4-4(b) provides a template for a court's consideration of competency and requires a showing:

(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and (2) That his elementary mental processes are such that he comprehends: (a) That he is in a court of justice charged with a criminal offense; (b) That there is a judge on the bench; (c) That there is a prosecutor present who will try to convict him of a criminal charge; (d) That he has a lawyer who will undertake to defend him against that charge . . .; (e) That he . . . understands the right not to testify; (f) . . . that he comprehends the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights . . . and (g) That he has the ability to participate in an adequate presentation of his defense.

[N.J.S.A. 2C:4-4(b).]

The threshold determination as to competency must be made by the trial judge and our review of a judge's decision to not order such a hearing is "a strict one." State v. Harris, 181 N.J. 391, 458, cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2004). As the Court noted in Harris:

[W]hile the court has the power to order an inquiry in the defendant's mental qualifications to stand trial, failure to exercise the powers will not be reviewed on appeal, unless it clearly and convincingly appears that the defendant was incapable of standing trial.

[Lucas, supra, 30 N.J. at 73-74, 152 A.2d 50 (emphasis added).]

To meet the clear and convincing standard on appeal, a defendant must show a "'bona fide doubt' as to [his] competence to stand trial." Spivey, supra, 65 N.J. at 37, 319 A.2d 461 (citing Pate, supra, 383 U.S. at 385, 86 S. Ct. at 842, 15 L. Ed. 2d at 822).

[Ibid.]

Here, Judge Kenny, who had observed defendant in numerous proceedings over a number of years, commented:

So, you know, Mr. King can pretend, which I am certain he is doing, pretend he doesn't understand what [his attorney is] . . . telling him with regard to plea cutoff, but I don't buy it. I've done enough now, Mr. King. You wrote me a letter, I responded to it in a nice way to you. In a helpful way to you. And you come back with some demand on me that I am in no way going to ever grant, okay, because I did it once before and I'm not being burned twice. I don't trust you[.]

. . . .

And don't write me anymore, Mr. King. Because you're a faker.

. . . .

I'll explain [the plea cutoff papers] and he can pretend he doesn't understand if he wants, but I don't buy it.

. . . .

Now, I know that you have not initialed these pages. You can initial them or not, as you choose. I know from all of the interactions I've had with you over the years including the most recent letter that I received late last month with the letter that was attached from the doctor that I went over a little earlier this afternoon, I am quite convinced that you understand what these procedures are about.

. . . .

So I'm not buying it, Mr. King. If you want to pretend that you don't understand, go ahead.

. . . .

I have no basis for giving, for ordering Ann Klein's scarce resources for Mr. King for an evaluation of him. For what? For his competency? I know he's competent, he writes me letters, they're extremely competent. He knows what he wants, he makes counter offers, he negotiates, you know. He I don't I mean the fact that a defendant doesn't take advantage of a very favorable plea bargain does not mean that I do an Ann Klein evaluation, or else I'd be sending down, you know, lots of people. I mean that's that's our judgment.

. . . .

So, the fact that Mr. King throws in one more demand which we think in the vernacular is crazy [to an offer that the court had to convince the prosecutor to go along with, and which is considered extremely generous], I mean why would he do this, why would he blow this great deal. But that doesn't mean he's insane in the legal sense or not competent in the legal sense. I mean somebody, he's self-destructive. I mean I just told him before he's his own worst enemy. You know, people that use drugs a lot are self-destructive. And there's there's some history of that with Mr. King.

So, I'm denying [defendant's request for a psychiatric evaluation]. There's very scarce resources with Ann Klein. I try to get people that are, you know, really seem to have severe organic brain disease and disorders, and they have to wait a month to get down there. I'm not going to waste that precious space on Mr. King because he's foolish enough not to accept an offer. I'll set the trial date.

I know you're doing your best, Mr. Beam, and I know, you know, I know you're trying very hard, but everybody's tried hard for Mr. King, except Mr. King has not tried hard for himself.

The fact that it's the same thing that he used the last time his mother, I'm sure he loves his mother, but if he really loved her in an unselfish way he would have finished this case up two years ago, gotten himself straight and gone home and taken care of the lady.

Ultimately, even defense counsel acknowledged that defendant "thinks he's fooling the court or maybe playing games with the court . . . . "

We must give value to a judge's observations of a defendant in assessing the judge's decision to deny a competency hearing, see State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000), and we must ascribe little weight to self-proclaimed incompetency. As we have noted, the trial judge here was fully familiar with defendant and his circumstances; she had observed him numerous times; she had the benefit of an earlier psychological evaluation concluding that defendant was competent to stand trial; and she had received "very well written" letters from defendant clearly exhibiting an ability to think, negotiate and participate in his case. Finally, she had a report from the Corrections Center jail medical director noting that defendant "coaches other fellow inmates how to act sick and bring lawsuits."

We find no error in the Judge Kenny's determination that no further inquiry was required as to defendant's competency.

The competency issue was resurrected by defendant when he filed a belated motion for a new trial. Among other issues, defendant raised the issue of diminished capacity. Judge Theemling, the trial judge, denied the application and noted:

But with this one for Motion for Retrial, basic allegations of the defendant is that he had a diminished capacity, was unable to participate in his trial and his attorney did not get a an adjournment or dismissal of the charges.

Again, all during this time, the court was receiving from the jail both from medical doctors and from psychiatrists reports indicating that Mr. King did understand the nature of his proceedings, was manipulative and basically knew how to work the system. And was doing all his actions and nonparticipations with an attempt to circumvent the Court process.

And as such, I'm denying his motion for a retrial.

Our review of the trial record supports the denial of relief. The proofs before the jury provided ample support for the guilty verdict, and no further analysis is required.

Defendant also asserts that he was denied effective assistance of counsel. Although the issue properly should be reserved for a petition for post-conviction relief, R. 3:22-1, we may consider such applications where there is no factual dispute and the issues can be addressed without further hearing. State v. Castagna, 187 N.J. 293, 313 (2006).

Defendant raises four claims of ineffective assistance of counsel:

1. Failure to Develop Expert Testimony

Regarding the Diminished Capacity

Defense.

2. Lack of Preparation in Presenting

Defendant's Motion for a Retrial to

the Trial Court.

3. Failure to Adequately Conduct an

Investigation into the Identity of

a Witness.

4. Failure to Object to the Lack of a

Statement of Reasons and Balancing

Analysis by the Trial Court and

Failure to Argue on Behalf of a

Finding under N.J.S.A. 2C:44-1b(4)

and (11) Based on Defendant's

Diminished Capacity.

We conclude that these claims are without merit.

We have previously found no error in the issues raised as to defendant's competency. We find no merit in the claim that further inquiry would have changed the result. Judge Kenny determined the issue of competency against defendant; counsel's alleged failure to act further is specious.

We reach a similar result regarding defendant's motion of a new trial. The motion was presented by defendant to the trial judge and denied. Given the nature and quality of the testimony against defendant, no different result would have followed had the motion been made by counsel.

As to the purported alibi witness, according to the record, defendant first notified his attorney of the alibi witness after the trial had commenced and the State had rested. Moreover, the identification of the witness was by first name - Keisha - with no last name and a partial resident address that existed "a couple of years ago."

Certainly, where there is timely notification of an alibi witness, counsel can be expected to act. Notification under the circumstances here is no notification at all. We find no ineffectiveness in counsel's inability to act on the so-called "alibi" witness, and in the context of the facts of this case, we see no basis for further inquiry.

Finally, as to the sentencing arguments, we conclude that they, too, are without merit. Defendant was a multiple offender. The trial judge demonstrated familiarity with defendant's competency issues and counsel correctly observed that his argument would probably have made little difference.

The test for ineffective assistance of counsel in New

Jersey is well settled. The New Jersey Supreme Court adopted

the two-part test for ineffective assistance of counsel as set

forth in the United States Supreme Court decision in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland test provides:

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.

[State v. Fritz, 105 N.J. 42, 52 (1987)(citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

In interpreting Strickland, the New Jersey Supreme Court further examined how the decision is to be read under the New Jersey Constitution. The Court labeled the first prong as "the performance prong" and restated the Strickland Court's ruling that "client loyalty, adequate consultation, and legal proficiency are relevant in determining whether assistance was effective." Fritz, supra, 105 N.J. at 52. Further, Strickland sets forth no specific test for the "performance prong." Fritz, supra, 105 N.J. at 52.

In order to satisfy the first prong under Strickland, defendant must show "that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). Although there is no specific set of rules that make defense counsel's conduct satisfactory, "there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [and . . . t]o rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy." Allegra, supra, 193 N.J. at 366 (citing Castagna, supra, 187 N.J. at 314). It is the court's job to "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Allegro, supra, at 366-67 (citing Castagna, supra, 187 N.J. at 314).

The Court's language in Allegro is especially helpful in analyzing counsel's conduct.

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

[Allegro, supra, 193 N.J. at 367 (citing Castagna, supra, 187 N.J. at 314-15) (emphasis added).]

The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97). In order to meet his burden under this prong, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 206-7 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Further, in a United States Supreme Court case decided the same day as Strickland, United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 667 (1984), the Court noted that when "[t]here are 'circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified' a presumption of ineffectiveness is warranted." Fritz, supra, 105 N.J. at 53 (quoting Cronic, supra, 466 U.S. at 658, 104 S. Ct. at 2046, 80 L. Ed. 2d at 667). These circumstances, however, involve cases in which a defendant suffers a "complete denial of the right to counsel altogether, actual or constructive." Fritz, supra, 105 N.J. at 53. As the Court recently noted, this is an "exacting standard." Allegro, supra, 193 N.J. at 367. The errors must be so significant that the court's confidence in the result reached is undermined. Ibid., Castagna, supra, 187 N.J. at 315.

In sum, under the New Jersey Supreme Court's interpretation of Strickland and the New Jersey Constitution, "a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Fritz, supra, 105 N.J. at 58.

Applying these tests here, we conclude that defendant cannot meet his burden under either prong. Counsel's conduct was neither unprofessional nor inappropriate; moreover, nothing counsel could have done would have changed the result on any of the issues raised by defendant.

As to defendant's last two arguments, we conclude that they are without merit. His assertion that his presentence report was incomplete because of lack of a complete interview with him is remarkable given defendant's refusal to be interviewed. Even though defendant later denied that to be the case, we are of the view that the judge did not err in moving forward with the sentence without the interview. Defendant was afforded the right of allocution and was given an opportunity to add any additional relevant information at the time of sentencing.

Finally, we conclude that defendant's arguments as to the sentence are without merit. The judge considered the relevant factors for sentencing and recognized that defendant had prior convictions for distribution of drugs within 1000 feet of a school zone. We perceive of no basis for our intervention.

 
Affirmed.

(continued)

(continued)

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A-3152-07T4

October 5, 2009