STATE OF NEW JERSEY v. GARNET CARSWELL

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

GARNET CARSWELL,

Defendant-Appellant.

_______________________________________

May 22, 2014

Submitted March 24, 2014 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1512.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Garnet Carswell appeals from an order entered by the Law Division on March 1, 2012, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Hudson County Indictment No. 06-08-1512 with various offenses related to the possession and sale of heroin. He was tried before a jury. At the trial, the State presented evidence which indicated that on April 23, 2006, Detective Amy Hulings and other officers from the Jersey City Police Department conducted surveillance for drug transactions in the area of Martin Luther King Drive and Myrtle Avenue.

Hulings observed two women and two men approach defendant and an individual named Jasan Allen, who were standing near a fence at 180 Myrtle Avenue. From her vantage point across the street, Hulings saw three of the individuals hand money to defendant. Allen then took a black box from his jacket pocket and gave small items to each of the three individuals.

After the four people left the area, perimeter police units stopped them and recovered small packages of heroin. Defendant and Allen were also apprehended. The officers recovered the black box from Allen, and inside found nineteen bags of heroin. Defendant had $129 in cash but no drugs on his person.

The jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (count four); third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count eight); third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count nine); third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count eleven); third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count twelve); second-degree distribution of a CDS within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (count thirteen); and third-degree conspiracy to distribute a CDS, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C-5(b)(3) (count fourteen).

The court merged counts one, two and three with count four and imposed an extended term of thirteen years of incarceration, with a six and one-half year period of parole ineligibility on count four. The court merged count eight with count nine, and imposed a five-year term of incarceration on count nine, with three years of parole ineligibility. In addition, the court merged counts eleven and twelve with count thirteen, and imposed a nine-year term of incarceration, with a four and one-half year period of parole ineligibility on count thirteen. The court also imposed a five-year prison term, with a two and one-half year period of parole ineligibility, on count fourteen. The court ordered the sentences be served concurrently.

Defendant appealed and raised the following arguments:

POINT I

THE ABBREVIATED VOIR DIRE BY THE TRIAL JUDGE DID NOT RESULT IN A FAIR AND IMPARTIAL JURY AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND WARRANTS A REVERSAL.

POINT II

THE DEFENDANT S CONVICTION ON COUNT TWO [SIC] IS CONSTITUTIONALLY DEFICIENT AND MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, AN ELEMENT OF THIS OFFENSE, THAT DEFENDANT DISTRIBUTED THE CDS WITHIHN 500 FEET OF A PUBLIC BUILDING, THEREFORE, THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR IN NOT GRANTING DEFENSE COUNSEL S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CONCLUSION OF THE STATE S CASE. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

PIONT III

THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A NEW TRIAL

POINT IV

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We affirmed defendant s convictions and the sentences imposed in an unpublished opinion. State v. Carswell, No. A-2459-08 (App. Div. Aug. 2, 2010). The Supreme Court denied defendant s petition for certification. State v. Carswell, 205 N.J. 81 (2011).

On May 23, 2011, defendant filed a pro se petition for PCR. The court appointed counsel to represent defendant, who filed a brief in which he alleged: (1) the indictment should have been dismissed in its entirety because inaccurate and misleading evidence was presented to the grand jury; (2) defendant was denied his constitutional right to present a defense; (3) defendant was denied his constitutional right to cross-examination; (4) the trial court denied defendant his right to a fair trial by an impartial jury and his due process right to a fair trial because of improper charges to the jury; (5) the trial court erred by denying defendant s motion for a mistrial; (6) defendant was denied the effective assistance of counsel in violation of the United States Constitution and the New Jersey Constitution; (7) the cumulative effects of the trial court s errors rendered the trial unfair; (8) defendant was denied the effective assistance of appellate counsel; (9) an evidentiary hearing is required on the allegations in the PCR petition; and (10) the PCR petition should not be barred on procedural grounds.

The PCR court considered the petition on March 1, 2012, and placed its decision on the record, concluding that defendant was not entitled to an evidentiary hearing and the petition should be denied. The court entered an order dated March 1, 2012, denying PCR, with an attached written statement of the reasons for its decision. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

DEFENDANT MADE A PRIMA FACIE SHOWING OF THE DENIAL OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THAT THE RESULT WOULD HAVE BEEN DIFFERENT BUT FOR THE ERRORS OF COUNSEL BELOW, AND WAS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING.

POINT I(A)

THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE THERE WAS INACCURATE AND MISLEADING EVIDENCE PRESENTED TO THE GRAND JURY, AND TRIAL COUNSEL WAS INEFFECTIVE FOR [FAILING] TO MAKE SUCH A MOTION, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR [FAILING] TO RAISE THIS ISSUE ON DIRECT APPEAL.

POINT I(B)

THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL ON PCR DUE TO TRIAL COUNSEL S FAILURE TO CALL A CRITICAL WITNESS AT TRIAL, AND WAS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING.

POINT II

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO THE FAILURE TO RAISE THE ISSUE OF DENIAL OF HIS CONSTITUTIONAL RIGHT OF CROSS EXAMINATION.

POINT II

THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHEN COUNSEL FAILED TO RAISE, ON DIRECT APPEAL, THE ARGUMENT THAT HE WAS DENIED A FAIR TRIAL BY IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF IMPROPER CHARGES TO THE JURY.

POINT III

DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO THE FAILURE TO RAISE ON DIRECT APPEAL THE ISSUE THAT A MISTRIAL SHOULD HAVE BEEN DECLARED BASED UPON THE STATE S SOLICITATION OF EVIDENCE THAT A DEFENSE WITNESS WORKED FOR THE PUBLIC DEFENDER S OFFICE, AND THEREFORE, BY IMPLICATION, THE DEFENDANT WAS INDIGENT.

Defendant has also submitted a pro se supplemental brief in which he argues that the indictment should have been dismissed because the State submitted erroneous information to the grand jury.

II.

Defendant argues that the PCR court erred by concluding that he was not denied the effective assistance of trial and appellate counsel. We do not agree.

Where, as here, a defendant claims he was denied the right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution, the defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court for consideration of similar claims brought under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and to rebut that presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Counsel's error "'must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

A. Dismissal of Indictment

Defendant contends that the State presented inaccurate and misleading evidence to the grand jury, and his trial attorney was ineffective because she did not seek to dismiss the indictment on this basis. He also argues that appellate counsel was ineffective because counsel failed to raise this issue on direct appeal.

Defendant notes that when Detective Hulings testified before the grand jury, she indicated that she observed the drug transactions take place at 140 Myrtle Avenue. However, at trial, Hulings said that the incident actually took place in front of the residence at 180 Myrtle Avenue. Hulings noted that, in her report, she had written several times that the incident took place in front of 140 Myrtle, but she "meant to write 180." She also admitted that during her grand jury testimony, she had twice mentioned that the incident took place in front of 140 Mrytle Avenue.

The PCR court found that trial counsel could not be faulted for failing to file what would have been considered a meritless motion. The court noted that, in an exceptional case, a indictment could be dismissed if the prosecutor fails to present the grand jury with exculpatory evidence. See State v. Hogan, 144 N.J. 216, 237 (1996). A comparison between Hulings' grand jury testimony and her trial testimony indicated that the address in Hulings' police report was merely a "clerical error."

The court correctly found that counsel's failure to file the motion to dismiss the indictment was not ineffective assistance of counsel, and appellate counsel did not err by failing to raise this issue on direct appeal.

B. Failure to Call Defense Witness.

Defendant contends that his trial counsel was ineffective because she did not call Joyce Montgomery as a defense witness. Here, the record shows that Montgomery was in court for the trial. She was willing to give her date of birth but refused to provide her social security number. Therefore, the State could not check Montgomery's background. Defendant's counsel stated on the record that she had spoken to defendant about this and she would not be calling Montgomery as a witness.

Defendant says that, under Rule 3:13-3, a defendant is not required to provide the social security numbers for defense witnesses. He contends that defense counsel should have argued that Montgomery be permitted to testify, despite her refusal to provide that information. He contends that Montgomery would have been able to testify that he was not arrested at either 140 or 180 Myrtle Avenue. According to defendant, Montgomery would have stated that the incident she observed occurred in the area near 194 or 198 Myrtle Avenue.

The PCR court correctly determined that defense counsel's decision not to call Montgomery did not rise to the level of ineffective assistance of counsel. Although Rule 3:13-3 does not expressly require defendants to provide the social security numbers for defense witnesses, the rule does not preclude the court from barring testimony from a witness who refuses to present other identifying information that the State would require for impeachment purposes.

For this reason, defense counsel did not act unreasonably in electing not to call Montgomery as a witness. Defendant has not shown that the court would have allowed Montgomery to testify despite her refusal to provide her social security number. Indeed, it is probable that any such application would have been denied.

Furthermore, defendant failed to show that he was prejudiced by counsel's failure to call Montgomery. While defendant says that Montgomery would have testified that the incident occurred at a place on Myrtle Avenue other than the place identified by Hulings, defendant has not established that such testimony would have led to a different result.

Hulings testified that she observed four individuals approach two men, later identified as defendant and Jasan Allen. Three of the individuals handed defendant cash, and Allen handed them small items in return. Hulings said that, based on her experience, she believed she had just witnessed a narcotics transaction. Officer Raymond Webber, who was working with the unit on the perimeter, testified that defendant was found exactly at the spot Hulings identified.

Montgomery's testimony would not have contradicted Hulings' testimony that she saw defendant and Allen engage in narcotics transactions. Thus, defendant was not denied the effective assistance of counsel because his attorney elected not to call Montgomery as a witness.

C. Alleged Denial of Right to Cross-examination

Defendant argues that his right to cross-examination was "undermined" by the court. She says that, in Hulings' original report, she indicated that defendant had been charged with conspiracy to distribute marijuana, but later changed the complaint by crossing out the word "marijuana" and inserting "heroin." Hulings said the original reference to "marijuana" was obviously a mistake.

The trial court told the jury that the change to the complaint was "not relevant." The court indicated that a police officer may charge an individual with an offense at the time of arrest, and that the prosecutor may subsequently determine whether the individual should be charged with "additional" or "lesser" charges. Defendant says that the court's instruction undermined his attorney's cross-examination of Hulings, and that the instruction "was inaccurate and/or misleading."

Defendant maintains that trial counsel should have objected to the court's alleged "improper interference" with her cross-examination, and his appellate counsel's failure to raise this issue on appeal constitutes the ineffective assistance of counsel. We do not agree.

We are convinced the trial court acted properly in foreclosing cross-examination on this issue and charging the jury that amendment to the complaint was irrelevant. The complaint merely set forth facts constituting the offense charged. R. 3:2-1(a). The complaint was changed to specify "heroin" rather than "marijuana," thereby placing defendant on notice of the precise factual basis for the charges. Moreover, the change was made before the grand jury heard testimony and returned the indictment.

We conclude that trial counsel was not ineffective for failing to object to the court's decision to limit the cross-examination and to instruct the jury that the changes to the complaint were irrelevant. Any such objection would have been meritless. Defendant has not shown that the result here would have been different if counsel had raised the issue during the trial. Moreover, defendant has not established that the result of his direct appeal would have been different if appellate counsel had raised these issues.

D. Failure to Seek Mistrial.

Defendant contends that his appellate counsel erred by failing to argue on direct appeal that the trial court erred by failing to declare a mistrial after one of the defense witnesses stated that she worked for the Office of the Public Offender. Defendant contends that he was prejudiced by this comment because it suggested that he was indigent. In addition, defendant argues that his trial counsel erred by failing to request a curative instruction regarding this comment.

At the trial, the assistant prosecutor asked defendant's investigator during cross-examination whether she worked for the Office of the Public Defender. Defense counsel objected, but the witness answered the question, "Yes." Counsel then moved for a mistrial. At side-bar, the judge said that the assistant prosecutor should "stay away from" any reference to the "public defender."

The assistant prosecutor withdrew the question, but defense counsel again moved for a mistrial. The court denied the application. Defendant says that court erred by failing to declare a mistrial and give the jury a curative instruction. He argues that he was denied the effective assistance of appellate counsel because counsel failed to raise this issue on appeal. We do not agree.

Here, defendant has not shown that the denial of his motion for a mistrial was an abuse of discretion. The State concedes that the prosecutor's question was inappropriate, but argues it was not intended as a comment on defendant's financial status or a suggestion that this status was a motive for his criminal conduct. There is no indication that defendant was unduly prejudiced by the witness's statement that she worked for the Office of Public Defender or the court's failure to provide the jury with a curative instruction.

Thus, defendant was not denied the effective assistance of appellate counsel. Defendant has not shown that the appeal would have been decided differently if this issue had been raised. Moreover, trial counsel was not deficient in choosing not to seek a curative instruction, reasonably preferring not to call further attention to the comment.

III.

In addition, defendant contends that the PCR court erred by failing to conduct an evidentiary hearing on his petition. Again, we disagree.

Rule 3:22-10(b) provides that an evidentiary hearing on a PCR petition is only required if a defendant presents a prima facie case in support of PCR, the court finds that there are material issues of fact in dispute that cannot be resolved by reference to the existing record, and the court determines that a hearing is necessary to resolve the claims for relief. See also State v. Porter, 216 N.J. 343, 354 (2013); State v. Preciose, 129 N.J. 451, 462 (1992).

Here, the trial record was sufficient to resolve defendant's claims, and he failed to present a prima facie case of ineffective assistance of counsel. Thus, the PCR court did not err by failing to conduct an evidentiary hearing on the petition.

We have also considered the arguments in defendant's pro se supplemental brief and conclude that they do not warrant further comment. R. 2:11-3(e)(2).

Affirmed.