STATE OF NEW JERSEY v. WALI WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WALI WILLIAMS, a/k/a TYRONE

JOHNSON, a/k/a TYRONE TELLER,

a/k/a TYRONE THOMAS, a/k/a

TYRONE WATERMELON, a/k/a

TYRONE WILLIAMS, a/k/a

WAIL WILLIAMS, a/k/a

WALI I. WILLIAMS,

Defendant-Respondent.

________________________________________________________________

October 31, 2014

Argued January 23, 2014 Decided

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1040.

Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant; Ms. Czykier, on the brief).

Lois De Julio, Designated Counsel, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. De Julio, on the brief).

The opinion of the court was delivered by

MAVEN, J.A.D.

By leave granted, the State appeals from a March 28, 2013 order granting defendant Wali Williams' petition for post-conviction relief (PCR). Following an evidentiary hearing, the court suppressed evidence seized during the search of a residential premises and defendant's custodial statement. Based on the evidence presented, the judge determined defendant received ineffective assistance of counsel, who failed at trial and on direct appeal to seek suppression of evidence seized in an illegal search along with defendant's subsequent custodial statement. As a result, the court vacated defendant's guilty plea, and ultimately dismissed the indictment for lack of evidence. On appeal, the State argues

I. THE MARCH 28, 2013 ORDER GRANTING PCR RELIEF INCLUDES FINDINGS NOT SUPPORTED BY THE RECORD AND LACKS NECESSARY CONCLUSIONS OF LAW.

A. The PCR Court's March 28, 2013 Order is Unsupported by the Finding Made at the Limited Remand Hearing and [the] State is Entitled to Present Its Arguments Regarding the Suppression of Evidence, the Exclusionary Rule and Dismissal of the Indictment as Applicable to This Defendant, Notwithstanding the New Jersey Supreme Court's Holding in State v. Davila.[1]

i. The Law Division Failed to Make Any Factual Findings or Conclusions of Law to Support Suppression of Evidence or Allow the State to Present Any Arguments Regarding Those Issues Prior to Dismissing the Indictment Against the Defendant.

ii. The Law Division Exceeded Its Authority by Granting Defendant Relief Beyond the Scope of the Limited Remand Without Permitting the State to Present Any Evidence or Argument Regarding These Issues.

B. The PCR Court's Finding of Ineffective Assistance of Counsel Is In Error and Focuses Solely On the Prejudice Prong.

We reject the State's arguments and affirm.

I.

On November 13, 2003, defendant and his three co-defendants stole a Jeep and then fatally shot two victims at two different locations in a one-night crime spree. Police were led to defendants through a cell phone left in the Jeep by its owner, but which was not in the vehicle when recovered. When police located the abandoned Jeep, a cell phone left in the vehicle by its owner was missing. Police determined calls were being made from the cell phone that evening.

Officers went to the location of the last call. Once inside officers conducted a protective sweep, which led to their discovery of co-defendant Davila in one of the bedrooms. The cell phone was also in that bedroom. Davila was arrested and later confessed to his involvement in the killings and implicated defendant and the other co-defendants.

All of the defendants moved to suppress the physical evidence seized from the apartment. The court denied the motion, finding that the police officers' entry into the apartment was by consent, crediting Lt. John Melody's testimony in this regard. It then concluded the protective sweep was reasonable under Maryland v. Buie, 494 U.S. 325, 335 36, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990), and State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976), aff'd o.b., 75 N.J. 81 (1977), in order to secure the officers' safety and did not exceed that which was necessary.

Defendants later moved to suppress their respective confessions. Following four days of hearings in January 2005, the trial court denied the motions "because the Miranda2 warnings were given and because the defendants intelligently waived their Miranda rights and because statements were made voluntarily."

Thereafter, Davila and each defendant entered guilty pleas to two counts of felony murder, and various other offenses. After sentencing, defendant appealed his conviction and sentence. He challenged the admissibility of his statement and argued that his conviction should have been reversed because the waiver of his right to remain silent was not knowing and intelligent. The appeal transmittal form, which identifies the issues for appeal, did not include a challenge to the denial of the motion to suppress the physical evidence seized. In an unpublished opinion, we affirmed defendant's convictions. State v. Williams, No. A-6685-04, (App. Div. Oct. 2, 2007) (slip op. at 9). The Supreme Court denied defendant's petition for certification. State v. Williams, 193 N.J. 223 (2007).

In June 2008, defendant filed a pro se petition for PCR, generally alleging ineffective assistance of counsel. Later, defendant submitted a supplemental PCR petition. After a non-testimonial hearing, the PCR judge denied defendant's petition. Defendant appealed and this court affirmed the order denying defendant's petition. State v. Williams, No. A-6331-08 (App. Div. May 10, 2011) (slip op. at 14).

Meanwhile, co-defendant Davila's direct appeal included a challenge to the constitutionality of the search of the apartment, and the admissibility of his confession and the physical evidence seized from the scene. We affirmed the conviction and the trial court order denying his motion to suppress. State v. Davila, No. A-1383-05 (App. Div. April 16, 2009) (slip op. at 14).

The Supreme Court granted Davila's petition for certification and, for the first time, considered the United States Supreme Court's holding in Buie, which authorized a "protective sweep" exception to the Fourth Amendment's warrant requirement, in the context of a non-arrest setting in which entry was based upon consent. Davila, supra, 203 N.J. at 101 (citing Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281). The Court held that officers may employ the technique of a protective sweep of a dwellingwhen: (1) police officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Id. at 102. Because it reasoned the newly established standard was not available to the trial court, and because the record before it was insufficient to determine whether the search fell within its new guidelines, the Court remanded the matter to the trial court for a new suppression hearing. Id. at 131.

On February 7, 2011, Davila's remand hearing began before Judge Michael Ravin. We derive the record of the remand hearing from our unpublished opinion. State v. Davila, No. A-6284-10 (App. Div. April 25, 2012) (slip op. at 13-19).

At the remand hearing, the State called as its sole witness Lt. Paul Sarabando, an investigator employed by the Essex County Prosecutor's Office and assigned to its Homicide Squad. . . . Lt. Sarabando testified in detail as to his analysis of call records [detailing six calls made from the stolen cell phone, four of which were made to the apartment.] From that evidence, Lt. Sarabando concluded that the person possessing the Nextel phone had called the apartment to see if anyone or someone in particular was there. Having received a positive response, the caller summoned a cab in order to go to the apartment. Lt. Sarabando knew that it was necessary to call a resident to gain entry to that particular building, and that is what he concluded the caller, once he arrived, had done. Since no further calls had been placed from the Nextel after the final call to the apartment at 1:01 a.m., Lt. Sarabando speculated that the individual placing the calls remained there.

. . . .

[T]he trial court found first that the police had gone to the apartment for a legitimate purpose based on information learned from the telephone call records.

. . . .

[T]he court found the sequence of phone calls described by Lt. Sarabando was insufficient to raise a reasonable suspicion.

The court then considered the lieutenant's testimony that Brown [the apartment's occupant] had responded to his question regarding other occupants by stating that there were people in the back. It stated

The court has great difficulty, and in fact does not credit that testimony for a couple of reasons. First of all, Detective Sarabando testified that Detective Melody was right next to him when Brown supposedly said that there were other people there. When one examines Detective Melody's testimony, it is absolutely bereft of that. If somebody makes the argument: Nobody asked him that; I'd reject it. It would be rejectable. That fact is of such consequence that if it were so? Detective Melody, whose testimony I credited? Would have said so.

In addition, it is stipulated by the parties that the two police reports about this incident, or that refer to this residence and the police activity there, neither of them refer to alleged remarks by Mr. Brown to the police that there were other people in that apartment. And that omission is just so glaring, this court cannot see its way around it; and does not. . . . I specifically find that when the police gained entrance into that apartment, that independent of any suspicion at all, the intent of the police was to fan out, without regard to whether they had any belief, reasonable belief that someone was inside the apartment that posed a danger.

In support of that finding, the court quoted testimony by Lt. Melody at the first hearing tending to indicate that he had immediately formed the intent to do a protective sweep of the apartment upon entering it.

As a consequence, the court found that the State had failed to meet its burden of demonstrating the constitutionality of the search and seizure.

[Davila, supra, No. A-6284-10 (slip op at 9-13).]

Thereafter, the judge granted Davila's motion to suppress the physical evidence seized from the apartment. He also suppressed Davila's confession as having been the fruit of an illegal arrest. We affirmed this order of suppression. State v. Davila, No. A-6284-10 (App. Div. April 25, 2012) (slip op. at 21).

In December 2011, the Supreme Court granted defendant's petition for certification, State v. Williams, 208 N.J. 601 (2011), and, thereafter, granted defendant's motion for leave to file a supplemental brief. In February 2012, defendant sought a limited remand, noting to the Court that in his direct appeal, his counsel failed to appeal the denial of his motion to suppress the physical evidence seized. Defendant pointed out that co-defendant Davila mounted such a challenge in his direct appeal, resulting in a remand for further proceedings. He noted further that as a result of Davila's remand hearing, the evidence seized was suppressed and Davila's confession was also suppressed as the fruit of an illegal arrest. The State did not oppose the remand motion. On March 27, 2012, the Supreme Court granted defendant's motion permitting him "to raise the ineffective assistance of counsel claim based on prior counsels' failure to challenge the illegal search." State v. Williams, No. A-6331-08 (March 27, 2012) (slip op. at 1). The Court retained jurisdiction.

On October 15, 2012, Judge Ravin held a hearing on the limited remand. He heard testimony from members of the Office of the Public Defender who represented defendant on direct appeal and in the initial petition for PCR. Appellate counsel testified he raised a single issue on appeal that defendant's convictions should be reversed because he did not voluntarily and knowingly waive his Miranda rights. He stated defendant's plea attorney failed to identify a possible search and seizure issue on the appeal transmittal form, and further failed to note that suppression hearings were held in 2004. Additionally, he testified he never received the transcripts of the motion to suppress the physical evidence.

A Deputy Public Defender who oversees the Intake Unit of the Appellate Section, testified her unit receives the transmittal appeal forms from the trial attorneys to help appellate counsel determine the issues on appeal and gather the necessary documents. She testified that plea counsel failed to indicate on the transmittal form that defendant's case presented a search and seizure issue, and only indicated the presence of a suppression issue as related to defendant's statement. She confirmed that her office made a mistake in failing to track down the motion transcripts.

Lastly, defendant presented the testimony of his PCR counsel, an Assistant Deputy Public Defender in the PCR unit who also served as defendant's counsel before the Supreme Court. She testified that she first learned of a potential search and seizure issue when defendant asked about it after learning of Davila's success with the issue on appeal. Upon receiving the transcripts from Davila's appellate attorney, she made a successful motion for a limited remand. After the Court granted her motion, she investigated further and determined from defendant's prior attorneys that the transcripts had not been ordered for defendant's appeal.

The State opposed PCR. However, the prosecutor neither cross-examined defendant's witnesses nor presented any evidence.

The focus of defense counsel's argument was counsels' chain of errors that resulted in the failure to raise, on direct appeal, the denial of the motion to suppress the physical evidence seized. PCR counsel argued plea counsel was ineffective by failing to properly complete the appeal transmittal form, omitting the suppression motion dates and failing to indicate the search and seizure issue on the form. Those errors caused appellate counsel to be unaware of these issues and to fail to order the necessary transcripts for the appeal. PCR counsel argued that prejudice to defendant was proven by the result in the Davila case.

At the close of the hearing, Judge Ravin found the defense witnesses credible, and held defendant's plea counsel was ineffective in preparing the transmittal of appeal form without referencing the suppression issue, which resulted in defendant being deprived of the opportunity to challenge the admissibility of the evidence seized during the search of the apartment. The judge issued an oral decision granting defendant PCR stating

I just don't understand how this can ultimately and practically . . . be viewed in any other way, as follows: Mr. Davila and Mr. Williams were a part of the same motion to suppress, . . . but for the fact that Mr. Davila's appeal was properly prosecuted or but for the absence of a proper prosecution of Mr. Williams' appeal, Mr. Williams would absolutely, without question, be in the same position as Johnnie Davila. That is the bottom line. No difference of issues; no nothing.

If you just took that approach and worked back to the . . . technical reasons or factors to put them in the same position, that's really all that's required here. They're both in the same position. And the same for Williams should have happened that happened with Davila, based on the law . . . .

[Appellate counsel] was simply ineffective in preparing the . . . appeal transmittal form; or . . . not even referencing the suppression issue. Had it been referenced and had it been pursued, ultimately through the appellate process, Mr. Williams' constitutional right to be free from unreasonable search and seizures would have been vindicated; there's simply no question about it.

Thereafter, Judge Ravin held oral argument on November 30, 2012, to determine the appropriate contents of the PCR order. The State argued the order should not include the suppression of the evidence because the sole issue before Judge Ravin was whether or not defendant's counsel was ineffective. The State contended that (1) the parties had not presented its suppression arguments to the court and (2) the court should not suppress the evidence as to defendant merely based on the fact that Davila's motion had been granted. The court noted defendant's case is the mirror image of Davila, reasoning that the two cases therefore necessitated the same result. Nevertheless, the judge transferred the matter back to the Court to grant relief pursuant to its retained jurisdiction.

On March 8, 2013, the Supreme Court remanded the matter for the trial court to enter a disposition order in light of its finding that defendant received ineffective assistance of counsel for failure to raise the issue regarding the legality of the search. On March 28, 2013, Judge Ravin entered an order granting defendant PCR. The judge having found that defendant was denied his constitutional right to the effective assistance of counsel by the failure of his trial attorney to forward the denial of his suppression motion for appeal, the judge found that the suppression motion should have been granted in accordance with the decision of the court in State v. Davila, 203 N.J. 97 (2010).

On appeal, the State does not challenge the finding of ineffective assistance of counsel. Rather, the State contends it is entitled to a remand for a hearing on the merits of the suppression motion as it pertains to defendant.3 We have reviewed the argument presented in light of the record and find that it lacks sufficient merit to warrant discussion in a written opinion, and we affirm substantially for the reasons stated by Judge Ravin in his oral decision of October 15, 2012, and as contained in the March 28, 2013 order. R. 2:11-3(e)(2). We add a brief explanation.

The State argues the remedy ordered by the court exceeds the limits of the remand on the issue of ineffective assistance of counsel. The Court, however, subsequently waived jurisdiction and expressly directed the PCR court to "enter an order of disposition in light of its finding that defendant received ineffective assistance of counsel for failure to raise the issue regarding the legality of the search[.]" State v. Williams, 213 N.J. 382 (2013). The trial court therefore had the authority to enter the orders that ultimately vacated defendant's conviction.

The United States Supreme Court has stated that a remedy for ineffective assistance of counsel under the Sixth Amendment "should be 'tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.'" Lafler v. Cooper, __ U.S. __, 132 S. Ct. 1376, 1388, 182 L. Ed. 2d 398, 411 (2012) (quoting United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668, 66 L. Ed. 2d 564, 568 (1981)). As such, "a remedy must neutralize the taint of a constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution." Id. at __ U.S. __, 132 S. Ct. at 1388-89, 182 L. Ed. 2d at 411.

Applying that principle to the facts of this case, we conclude the disposition ordered by the trial court was appropriate in light of the evidence. A remand to litigate the suppression issue against defendant would be futile. The State has twice presented its suppression arguments in the Davila case, without success. The facts underlying the search of the apartment will not change. The record in the Davila suppression hearing reveals that Davila and other defendants were present at the apartment when police entered and conducted the protective sweep, but not defendant. The testimony of the State's sole witness, the officer who testified as to the basis for the search, was not deemed credible by the trial court. The court found the search to be unconstitutional.

The State fails to put forth any legally sustainable reasons to remand defendant's case for a suppression hearing. The State cannot offer any new or additional evidence other than what they unsuccessfully presented before Judge Ravin in the Davila case. The legal issues to be addressed in regards to the search are the same for defendant as they were for Davila. Further proceedings in this matter would not be likely to result in any other outcome.

Lastly, while we conclude that defendant's statement was the product of an illegal search, we note the State conceded, in an email exchange dated May 6, 2013, between Judge Ravin and the parties, that if defendant's statement is suppressed as fruit of the poisonous tree, then it does not have enough evidence to proceed to trial.4 Based on the foregoing, we conclude there is nothing to be gained by remanding this matter for a suppression hearing. Any further proceedings would be a waste of judicial resources.

Affirmed.

1 State v. Davila, 203 N.J. 97 (2010).

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 At oral argument before us, the State argued defendant's arrest was attenuated from the search and suppressed evidence in the Davila case. Because the State did not properly brief the attenuation issue, we decline to consider it. See R. 2:6-2(a)(5).

4 The State made a similar concession at the 2004 hearing on the motion to suppress the physical evidence, as the court found on the record, without objection, that the State "concedes that there are no exceptions to the fruits of the poisonous tree doctrine, which would render the post-arrest statements admissible should this [c]ourt invalidate the seizures of the evidence that led to the taking of the statements."