STATE OF NEW JERSEY v. ALTARIQ COURSEYAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STATE OF NEW JERSEY,
August 20, 2015
Argued February 24, 2015 Decided
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-09-2358.
Patrick Michael Megaro (Halscott Megaro) argued the cause for appellant.
Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief).
Defendant appeals from his conviction of various drug offenses, most seriously, first-degree possession of CDS with intent to distribute (PWI), N.J.S.A. 2C:35-5(a)(1), -5(b)(1) and his sentence to an aggregate term of twenty-two years with eleven years of parole ineligibility. Defendant was also convicted of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); third-degree PWI in a school zone, N.J.S.A. 2C:35-7; and fourth-degree PWI to distribute drug paraphernalia, N.J.S.A. 2C:36-3. He was acquitted of second-degree possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1; and fourth-degree violation of regulatory provisions relating to firearms, N.J.S.A. 2C:39-10. Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.
Upon executing a search warrant on January 18, 2012, police found almost fourteen ounces of cocaine in the third-floor apartment of a three-story house in Irvington.1 Also found were cutting agents, scales, and various forms of packaging materials.
Defendant resided with his wife and children in Edgewater Park, in Burlington County. To establish that defendant possessed, and intended to distribute, the cocaine and related items in the Irvington apartment, the State relied on the testimony of two witnesses: New Jersey State Police Detective Timothy Meyers,2 who conducted under-cover surveillance of the house on "four or five" prior occasions beginning December 18, 2011, and participated in the raid; and Essex County Sheriff's Office Detective Reginald Holloway, who presented his expert opinion about the distribution of narcotics.
Meyers testified that during the weeks beginning December 25, 2011 and January 1, 2012, he observed defendant at the Irvington house. Meyers used binoculars from a vehicle parked as much as seventy-five feet away from the building. On one occasion, Meyers spotted defendant at the front door. On multiple occasions, Meyers saw defendant peer out the window of the third-floor apartment. Meyers was able to identify defendant because he had become familiar with him the week before he conducted surveillance.
In addition to this direct evidence, Meyers linked defendant to the third-floor apartment and its contents by presenting various documents addressed to defendant, and numerous photographs of defendant, which were seized during the raid. Meyers testified that police did not find any documents related to persons other than defendant. Although many documents found in the apartment were undated, or were over two years old, Meyers presented more recent documents with defendant's name and his Edgewater Park address, including: a May 24, 2010, receipt from a Cherry Hill Mercedes-Benz dealer; an April 8, 2010, bank deposit slip; and Irvington traffic summonses, one dated December 27, 2010, and another just dated 2010. Meyers also identified four relatively recent documents that listed the Irvington address as defendant's own, including: two April 10, 2010, receipts from a tire store in Maplewood; and two receipts from an Irvington furniture store dated May 22 and 28, 2010.
Also indicative of defendant's connection to the apartment was a 2005 Buick LaCrosse that was registered to defendant and found parked outside the Irvington house on the day of the raid. The keys and the title, dated October 26, 2011, with defendant's Edgewater Park address, were found in the third floor apartment. Meyers testified that the apartment included a man's clothing in the closet.
Meyers stated that a "look up" indicated that Jamal Coursey, defendant's brother, was the listed owner of the house in 2011 and 2012, and resided on the second floor.3 Khalid Coursey, a cousin of defendant, lived on the first floor. The first floor apartment was also searched during execution of the warrant, but police found no contraband there. Meyers testified that he never saw Khalid4 or Jamal in the third floor apartment, but he saw Khalid twice on the first floor. Jamal was questioned but not charged.
On cross-examination, the defense challenged Meyers' ability to accurately identify defendant on the two occasions, focusing on his distance from the house, his line of sight, the omission of any reference to binoculars in his report, and the fact that photographs of the apartment showed that the windows had curtains and blinds. The defense also highlighted that the search warrant did not identify defendant as a named target. The warrant identified another person as the customer on the utility account neither Khalid nor Jamal.
Defense counsel also elicited that no fingerprint evidence was gathered, nor was the clothing examined to determine if it matched defendant's size. Defense counsel established that Meyers had relied on a Lexis-Nexis report that indicated defendant previously resided in Irvington, but ceased doing so in April 2010, and he resided in Edgewater Park since April 2004. Over defense objections, the court ultimately allowed the State to introduce the Lexis-Nexis report into evidence, solely to establish Meyers's state of mind, but not for the truth of the matters stated in the report.
Holloway was admitted as an expert without objection. He described the nature of a "stash location" a place where a narcotics distributor may keep his product. Holloway explained it was common for a drug trafficker who lives in an upscale area to utilize a residence in a high-drug-traffic area as a place to store and distribute drugs. He explained it was also common for traffickers to use more than one car to do business, to avoid detection. Holloway explained the significance of the cutting agents and other paraphernalia and packing materials found in the apartment. In response to a lengthy hypothetical question premised on facts mirroring those presented by the State Holloway opined that the narcotics found in the apartment were possessed with the intent to distribute.
Defendant did not testify. Through the testimony of three family members his wife, grandmother, and brother Jamal he attempted to establish that he resided in Edgewater Park and had ended his connection to the Irvington apartment before the raid, notwithstanding the presence of documents and photographs. A fourth witness attempted to explain the presence of defendant's Buick. She asserted defendant left the vehicle, keys, and title there because she was considering purchasing it.
In his opening statement, defense counsel previewed this defense. In so doing, he asserted that he would prove defendant was not guilty.
I represent the defendant, Altariq Coursey in this case who is unjustly accused in this case and I am going to prove it to [you]. You can hold me to it. I am going to prove it to you. I don't have to prove anything. The Judge will tell you that but I am going to prove to you that he's not guilty.
Counsel referred to the alleged car buyer, stating
You are going to find out why there was a car there that was in his name and you are going to find out why a [t]itle was upstairs. You are going to find out that he was going to sell that car to someone who was supposed to come there and pay for it, get the keys, get the [t]itle from his cousin and go. That's why that was there.
Jamal's testimony was controversial because he was present in court during Meyers's testimony, notwithstanding a sequestration order. We will discuss the facts related to the sequestration order in our discussion of defendant's argument that the court's instructions regarding Jamal's presence prejudiced his right to a fair trial. We address here the substance of Jamal's testimony.
Jamal testified that he lived at the Irvington house for seventeen years and owned it with his wife. He testified that defendant did not live or sleep there, and did not have an ownership interest in the property. Jamal said his brother lived in Edgewater Park with his wife and two children. Jamal did not see his brother on January 18, 2013. Asked if anyone lived on the third floor around that time, Jamal stated, "Not to live in but periodically people stay up there." Jamal then stated, "Khalid was living there. . . . He was living on the first floor but he occupied the first and third floor." Jamal stated that Khalid used the third floor apartment since late 2011.
As for the presence of defendant's documents and photographs in the third floor, Jamal testified, "[W]e have a box of old mail, pictures. I actually have a duffel bag full of pictures and those pictures were mixed in with my pictures and a lot of other pictures." He attributed the letters and bills to "just old mail."
Jamal admitted he had a 2005 federal conviction for conspiracy related to drugs; he was incarcerated for four years and three months; and was released over seven years ago.5 On cross-examination, he asserted that defendant had not resided on the third floor in the years since his release. He continued to insist that the documents with defendant's name were junk mail. On redirect, in an apparent effort to explain the presence of the documents, defense counsel elicited that defendant visited the home in Irvington while Jamal lived there.
Lizette Tinney testified regarding her interest in purchasing the Buick. She stated she was employed at a hospital for twelve years, and knew defendant for over twenty years. She stated she and defendant agreed he would leave the vehicle at the Irvington residence for her to pick up. She testified that she received several quotes to insure the car. However, she did not complete the purchase because "the car was taken."
Tinney explained on cross-examination that the vehicle was left in Irvington to accommodate her, because it was closer to her home than Edgewater Park. However, the State undermined Tinney's account by confronting her with documentation she brought to court that day. A letter from her insurance agent stated that he secured insurance quotes for the Buick in November 2012 and January 2013, nearly a year after the execution of the search warrant. Tinney insisted that she was trying to buy the car in November 2011, and the dates in the letter were typographical errors. On re-direct, Tinney indicated that she meant to purchase the car for $5000 after she received her 2011 tax refund.
Defendant's wife testified about their long-term marriage, their children, and the home they owned in Edgewater Park. She stated her husband was in the business of selling used cars, and investing in properties. Defendant usually slept at home, and took their two children to school every day. Although she stated that defendant was normally home on Christmas Day, she could not recall his whereabouts for the balance of that week or the following week. Defendant's wife also acknowledged on cross-examination that defendant still insured the Buick as late as 2013, contrary to Tinney's apparent understanding that the vehicle was sold before she could acquire it.
Defendant's ninety-year-old grandmother testified that defendant lived in Edgewater Park, not Irvington. But, she stated he visited family members in Irvington.
The jury deliberated for less than ninety minutes before returning its verdict of guilty on the drug-related counts, and not-guilty on the weapons-related counts. The jury did so after requesting a read back of Meyers's testimony that the only documents found on the third floor pertained to defendant.
At sentencing, the court merged the third-degree possession count into the first-degree PWI count, on which the court imposed the twenty-two-year sentence, with an eleven-year term of parole ineligibility. The court had granted the State's motion for a non-discretionary extended term based on defendant's prior convictions for second-degree PWI, and doing so in a school zone, a third-degree offense, pursuant to a 1992 indictment; and for third-degree PWI and doing so in a school zone, pursuant to a 1997 indictment. Defendant was also convicted in 1992 for possession of an assault firearm, and, in 2005, for possessing burglary tools in Georgia.
The court found that aggravating factors three, risk of reoffending; six, extent of prior record and seriousness of offense; and nine, need to deter, preponderated over any mitigating factors. The court recognized that the defendant's incarceration would impose hardship on his family, but the court gave it little weight, since it was not "unique to defendant or his family."
Defendant raises the following points on appeal
Point I Defendant-Appellant's Due Process Rights and Rights to Be Prosecuted by a Grand Jury Indictment Were Violated Where Both the Trial Court and the Prosecution Impermissibl[y] Changed the Theory of Prosecution at the End of Trial From Constructive Possession to Joint Possession, a Theory Not Presented to the Gran[d] Jury Giving the Jury a New Theory Upon Which to Convict Defendant-Appellant (Raised Below).
Point II The Trial Court's Erroneous Admission of Drug Expert Testimony Was Plain Error Where the Expert Witness Gave an Improper Opinion as to the Ultimate Issue, and Where the Prejudicial Effect Far Outweighed The Probative Value (Not raised Below).
Point III Defendant-Appellant Received Ineffective Assistance of Counsel Where Trial Counsel Assumed a Burden of Proving Defendant-Appellant Innocent in his Opening Statement, Failed to Deliver Upon his Promise To Present Exculpatory Evidence, and Affirmatively Damaged the Case by Introducing Evidence that Directly Undermined the Defense (Not Raised Below).
A. Trial Counsel's Unfulfilled Promises of Exculpatory Evidence Made During His Opening Statement Was Constitutionally-Deficient Performance and Statements Made By Counsel Evinced an Utter Failure to Investigate the Facts Necessary to Form a Defense.
B. Trial Counsel Rendered Ineffective Assistance by Opening the Door to Otherwise Inadmissible, Damaging Hearsay Evidence, and Failing to Object to the Narcotics Expert Testimony.
Point IV The Trial Court's Instruction that a Defense Witness Had Intentionally Violated the Sequestration Instruction Was Prejudicial and Constituted Plain Error Where the Record Establishes that the Witness, Who Was Initially Listed as a Prosecution Witness, Inadvertently Violate[d] the Sequestration Order, There Was No Prejudice to the State, and the State Failed to Question the Witness About the Violation (Raised Below).
Point V The Sentence Imposed Violated the Defendant-Appellant's Sixth Amendment Right to a Jury Trial Where His Sentence was Enhanced Based Upon An Additional Element Not Charged in the Indictment, Not Conceded and Not Submitted to or Found by the Jury Beyond a Reasonable Doubt (Not Raised Below).
Only two issues warrant extended discussion: defendant's claim of ineffective assistance of counsel; and his argument that the court erred in its instruction regarding the impact of Jamal's presence in court during Meyers's testimony.
Defendant argues that his attorney provided ineffective assistance of counsel in several respects. Defense counsel affirmatively assumed the burden to prove his client was not guilty. Defendant complains that his trial counsel opened the door to introduction of the Lexis-Nexis document. Also, he argues counsel failed to fulfill his promise to present evidence regarding why the Buick was parked at the house. Defendant argues he suffered prejudice.
We recognize that assuming any burden that is not already assigned to a defendant is fraught with risk, and may well rise to ineffective assistance. See State v. Martin, 525 N.E.2d 521, 522-23 (Ohio Ct. App. 1987) (finding ineffective assistance where, among other things, defense provided no explanation for counsel's opening statement that "'we have to . . . prove that [defendant] was not the person involved'"); People v. Dean, 856 N.Y.S.2d 649, 651 (App. Div. 2008) (finding ineffective assistance where defense counsel, among other errors, stated that he would prove defendant was innocent).
It also appears that defense counsel was surprised by the dates in the documentation Tinney brought to court. Although Tinney claimed the Buick was at the Irvington house because she contemplated purchasing the vehicle, the insurance agent's communication undermined her claim. Defendant argues that his trial counsel was ill-prepared, noting that his attorney conceded in a side-bar on the first trial day that he had not spoken to a witness apparently Tinney and on the day when Tinney was called, defense counsel conceded that he had not yet reviewed the document from the insurance agent.6
However, our Court "routinely decline[s] to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims involve allegations and evidence that lie outside the trial record." State v. Hess, 207 N.J. 123, 145 (2011) (internal quotation marks and citation omitted); see also State v. McDonald, 211 N.J. 4, 30 (2012); State v. Preciose, 129 N.J. 451, 460 (1992). Although we can fathom no reasonable strategic reason for defense counsel to have assumed the burden to prove defendant not guilty, we decline to address that aspect of claimed ineffectiveness on direct appeal, separate from the other alleged instances of inferior performance.
An assessment of prejudice must include consideration of the cumulative impact of a trial attorney's deficient performance. See id. at 463 (stating that a defendant "might have demonstrated at an evidentiary hearing that the cumulative effect of trial and substituted counsels' allegedly casual and superficial representation of defendant's interests constituted deficient performance") (emphasis added); see also Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005) ("We must analyze each of his claims separately to determine whether his counsel was deficient, but prejudice may result from the cumulative impact of multiple deficiencies.") (internal quotation marks and citation omitted); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) ("Since [defendant's] claim of ineffective assistance of counsel can turn on the cumulative effect of all of counsel's actions, all his allegations of ineffective assistance should be reviewed together.").
The other claims of ineffectiveness are more typical of those that require consideration of evidence outside the record. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984).
We are not prepared to foreclose the possibility of an explanation for defense counsel's apparent failure to review the insurance agent's document that undermined Tinney's testimony. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999).
Upon the filing of an appropriate PCR petition, the trial court may consider these and any other alleged instances of ineffective assistance of counsel, and whether prejudice has resulted, pursuant to the two-prong standard under Strickland, supra, 466 U.S.at 687, 694, 104 S. Ct.at 2064, 2068, 80 L. Ed. 2d at 693, 697-98 (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment; and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard); see also State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013) (explaining that "'reasonable probability'" under Strickland "is not the same as more likely than not; rather 'reasonable probability is a probability sufficient to undermine confidence in the outcome'") (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defendant also argues that the court erred in its instruction regarding Jamal's presence during Meyers's testimony. We agree that the court's instruction injected doubt into Jamal's testimony, without sufficient basis in the record. However, we do not find that this error standing alone, is a sufficient basis to upset the jury's verdict.
The underlying facts are as follows. The trial court issued a sequestration order before trial and served it on counsel. The order stated
1. All witnesses must remain out of the courtroom while the trial is in progress unless that witness is testifying.
2. After a witness has begun testifying, that witness may not discuss his or her testimony with any other witnesses until the trial is over.
3. Counsel may not discuss any subject relating to the facts of the case in the presence of two or more witnesses unless the trial is over unless (A), all those present have completed their testimony or (B), all those present have not yet testified.
Exceptions to the above including requested exceptions for expert and possible rebuttal witnesses may be granted by the Court. Unless any such exception is granted, this Order applies to all witnesses including expert and possible rebuttal witnesses.7
Before starting cross-examination of Meyers, and outside the jury, defense counsel announced his newly formed intention to call Jamal in the defense case. Defense counsel stated that he had not met Jamal until that day. He was aware that Jamal was in court during Meyers's testimony. The prosecutor objected to defense counsel calling the witness. The court initially reserved decision.
The court revisited the issue after the State rested. The prosecutor conceded that he placed Jamal on a joint witness list, but only so the court could ascertain whether prospective jurors knew him, because his name appeared in police reports. The prosecutor stated he had never spoken to Jamal.
Defense counsel stated, "I wasn't intending on calling him [Jamal] until Officer Meyers said a couple of things and I thought that it would be good for the jury really to hear from the only person who was in there." Defense counsel contended he would only ask Jamal a limited number of questions, to elicit testimony that defendant was not present the day of the raid, he did not live there, the third floor apartment was not his, and "he had stayed there once in a while and other people used the room." The prosecutor asserted that Jamal's testimony would be affected by what he heard from the officer, particularly the time periods when Meyers claimed defendant was present.
When the discussion resumed the next day, the State asked the court to instruct the jury "that there was a sequestration order that was violated and the jury can make whatever conclusions they want relative to this." The judge stated he would provide an instruction at the close of the case.
However, the judge changed his mind after defense counsel elicited testimony from Jamal during re-direct regarding the sequestration order. Jamal testified he had not met counsel until Tuesday. Over the State's objection, counsel elicited that Jamal was unaware of the sequestration order or what it meant until he met with counsel, who explained it to him; thereafter Jamal absented himself from the courtroom. The judge overruled the State's objection to that line of questioning because the judge intended to instruct the jury that there was a sequestration order and the reason for it. Defense counsel stated he would not object to such an instruction.
However, the court's instruction went farther. The judge began
Ladies and gentlemen of the jury, in [defense counsel's] questioning of the witness he alluded to a Sequestration Order. I will tell you now that 10:45 a.m. on October 2nd, 2013 I signed a document C-3 which said State vs. Altariq Coursey, Sequestration Order. It was given to the Prosecutor. It was given to the Defense. It is their obligation to advise their witnesses of the contents of it.
The judge read the order to the jury and then added
As to the import of that Order which the defense alluded to in its examination, I had to let you know what it was or how would you know?
I will discuss the import of that in my instructions to you on the law at the end of the case.
Please call your next witness.
At side bar, defense counsel objected that the instruction made it look like he "tried to pull a fast one," and that the jury should be instructed that the court granted him the right to call the witness. The judge responded by instructing the jury that the court could permit a witness to testify, and did so in this case. He added, "What this really will bear on, as I will tell you in my final instructions, is the credibility of the witness who sat through somebody else's testimony and listened to that person say how things were before he testified."
In his closing, the prosecutor noted that the sequestration order was issued before the trial, "so we could have fairness. No one was allowed to come in and listen to the testimony of other witnesses so then that person can come in and give testimony based upon their own recollection, their own knowledge. Jamal Coursey doesn't follow that instruction. Jamal Coursey sat in here." Defense counsel objected, which the court overruled.
In conference, the judge recited his proposed charge on the sequestration issue
"Prior to the commencement of testimony from any witness, the Court issued Sequestration Order, C-3 which you will have in evidence for all of the witnesses in this case.
"This order was placed on the table in front of the Defendant and in front of the Prosecutor on October 2nd, 2013 at 10:45 a.m.
"The Witness Sequestration Order required, among other things, that no witness be present in Court during the testimony of other witnesses.
"Experience has shown that the use of Witness Sequestration Orders prevents prospective witnesses from hearing what other witnesses detailed during the course of their testimony, because the less a potential witness hears of another witness's testimony, the more likely that potential witness is to declare their own knowledge of the facts simply, unbiased.
"Here Jamal Coursey, a witness for the defense, testified on October 10th, 2013. He was present in Court during the direct testimony of the State's witness, Det. Timothy Meyers on October 8th and October 9th, 2013. This was a violation of the Court's Witness Sequestration Order.
"In his testimony Jamal Coursey denied knowledge of the order.
"As to the judgement of the facts, you are to determine the credibility of the witnesses and in determining whether a witness is worthy of belief and therefor credible, you may take into consideration the fact that Jamal Coursey listened to the testimony of Det. Timothy Meyers prior to Jamal Coursey's testimony. You must determine whether you believe all or any are part of Jamal Coursey's testimony in light of the factors that I listed for assessing credibility including an alleged violation of the Witness Sequestration Order."
The judge also stated his intention to admit the sequestration order into evidence and provide it to the jury. As delivered, the court adhered to this proposed charge, with insignificant deviations.
After a lunch break, the court sua sponte decided to revise its charge on sequestration, and not submit the order to the jury. The court instructed the jury
Ladies and gentlemen, I may have misstated the law on the permit[t]ed use of the issue of sequestration of witnesses so I am going to recharge you on that particular subject.
Prior to the commencement of testimony from any witnesses the Court issued a Witness Sequestration Order for all the witnesses in this case.
The Witness Sequestration Order required, among other things, that no witness be present in Court during the testimony of other witnesses.
Experience has shown that the use of Witness Sequestration Order prevents prospective witnesses from hearing what other witnesses detailed during the course of their testimony because the less a potential witness hears of another witness's testimony, the more likely that potential witness is to declare his own knowledge of the facts simply and unbiased.
Here Jamal Coursey, a witness for the defense, testified on October 10th, 2013.
He was present in Court during the direct testimony of the State's witness, Det. Timothy Meyers on October 8th and October 9th, 2013.
As the judges of the facts you are to determine the credibility of the witnesses and in determining whether a witness is worthy of belief and therefor credible you may take into consideration the fact that Jamal Coursey listened to the direct testimony of Det. Timothy Meyers prior to Jamal Coursey's testimony.
You must determine whether you believe all or any of Jamal Coursey's testimony in light of the factors that I listed for assessing credibility including the circumstances that he had the benefit of listening to Det. Meyer's testimony before he testified.
Defendant asserts that the trial court's instruction that Jamal violated the sequestration order was prejudicial and constituted reversible error, particularly since Jamal was initially placed on the witness list by the State. We agree that the instruction was in error.
A court is granted the discretion to sequester witnesses. "At the request of a party or on the court's own motion, the court may, in accordance with law, enter an order sequestering witnesses." N.J.R.E. 615. The issue presented here is the appropriate response of a court when there has been inadvertent non-compliance with the order.
The court properly rejected the State's request that the court bar Jamal from testifying. We have held that barring a witness may be justified under "extraordinary circumstances," State v. Dayton, 292 N.J. Super. 76, 89 (App. Div. 1996). But such a drastic step should be a "last resort." Id. at 91. Other remedies, vested in the trial court's discretion, may include permitting opposing counsel to comment on the non-compliance, allowing examination of the witness regarding the violation, or instructing the jury as to the impact a witness's presence may have on credibility. See State v. Tillman, 122 N.J. Super. 137, 144 (App. Div.) (stating the court may "call the disobedience of the order to the attention of the jury as bearing on the credibility of the witnesses involved" and the court may permit a party to "interrogate the witnesses as to what occurred and may comment thereon in their summations"), certif. denied, 62 N.J. 428 (1973); see also 4 Weinstein's Federal Evidence 615.07[c] (2015) (citing federal cases).
We have suggested, as a general procedure, "that the trial judge 'should promptly conduct a voir dire out of the presence of the jury in order to ascertain the nature and extent of [the] violation . . . [and] thereupon determine what remedial action is required, if any, in  light of all the circumstances.'" Dayton, supra, 292 N.J. Super. at 89 (quoting Tillman, supra, 122 N.J. Super. at 143).
In determining the appropriate response, the court should consider whether the violation was intentional, or inadvertent; and whether fault, if any, lies with the attorney, the witness, or the party. Tillman, supra, 122 N.J. Super. at 142-44 (ordering a new trial in the case of "clear violation" of the order, and fault on the part of the State). Certainly, a purposeful violation by a witness may reflect an intention to tailor one's testimony, and may raise significant questions about credibility. On the other hand, a witness who was present in court but was unaware of the order or that he would be a witness, presents a lesser threat to the integrity of the fact-finding function.
The court should also consider the prejudicial impact of the violation. Dayton, supra, 292 N.J. Super. at 89. If the violation did not create a genuine risk of tailored testimony, there would be no need to address the issue with the jury.
An instruction or comment [by the trial court], while useful, may have unwarranted repercussions if the witness remained in the courtroom or had a discussion with another witness but his or her testimony was unaffected. A derogatory comment on the witness's credibility under these circumstances may actually distort the truth.
[4Weinstein's Federal Evidence, supra, 615.07[c].]
A court should also view the potential for tailoring arising out of the violation in the context of other opportunities for a witness to be primed to respond to an adversary's testimony, or to corroborate a fellow party witness. Id. 615.07[b] (noting there are "alternative ways in which a witness's recollection can be stimulated other than by hearing fellow witnesses testify, reading their testimony, or discussing their testimony with them" including attorney conferences, or review of pertinent materials before or during trial).
With these standards in mind, we are persuaded the trial court abused its discretion in delivering its instructions on the sequestration order especially the first two and overruling the defense objection to the State's comment in closing. Contrary to the suggestion in Tillman and Dayton, the court did not conduct a voir dire to elicit evidence, and make findings regarding the nature and extent of the violation.
However, based on counsels' representation, it appears that Jamal was placed on a witness list at the State's request, notwithstanding that the State apparently had no intention of calling him. The State apparently did not inform Jamal he was on the witness list, he might be called to testify, or of the sequestration order barring potential witnesses from the courtroom prior to their testimony.8 Defense counsel stated he decided mid-trial to speak to Jamal, and then to call him as a witness. Only then did defense counsel inform Jamal of the order, which he then obeyed.
Moreover, the probability that Jamal tailored his testimony to meet Meyers's testimony appears slight, based on our review of the record. Jamal did not need to be in court to know that the State's theory of the case rested on the discovery of the documents and photographs on the third-floor, which connected defendant to the third-floor apartment and the discovery of contraband. Jamal testified that when he was questioned after the raid, he was informed that police found "a lot of stuff" in the third floor and asked for his brother. Jamal could have learned other details of the State's case from his brother before trial; or in the course of pre-trial preparation, had defense counsel planned to call Jamal before trial.
In light of these facts, it was a mistaken exercise of discretion for the court to state in its mid-trial instruction that it signed a sequestration order, which the court then recited, before stating that it was the "obligation [of the attorneys] to advise their witnesses of the contents of it." The implication was clear: defense counsel violated an obligation to advise Jamal of the contents. However, at the outset of the trial, Jamal was not identified as a defense witness; rather he was placed on the joint list by the State.
The court also erred in overruling defense counsel's objection to the prosecutor's comment on the issue. The prosecutor accused Jamal of purposefully violating the court's order: "Jamal Coursey doesn't follow that instruction. . . . That order was not obeyed." However, the record is barren of any evidence that Jamal was aware of the order when he was present in the courtroom. Thus, his noncompliance was not like the inadvertent violation of someone who forgot or misunderstood the order; he lacked any notice of it at all.
The court's first closing instruction to the jury was also problematic. The court presented Jamal's alleged noncompliance as a fact issue for the jury, when there was no basis in the record for the jury to find his noncompliance was knowing or intentional. No one testified or represented to the court outside the jury that Jamal was served with the order or informed of it until after he heard Meyers's testimony. Although the court revised its instruction, it did not undo the prejudice. The judge did not highlight the alterations; stating only that he "may have misstated the law on the permit[t]ed use of the issue of sequestration of witnesses." The jury was unaware that the State added Jamal to the witness list; neither attorney apparently informed Jamal he was a potential witness until after Meyers testified.
Although we are convinced the court erred, the error was not sufficient to warrant reversal. "A defendant is entitled to a fair trial but not a perfect one." State v. R.B., 183 N.J.308, 334 (2005) (internal quotation marks and citation omitted). "Not every trial error in a criminal case requires a reversal of the conviction. If it is not of constitutional dimensions, it shall be disregarded by the appellate court 'unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .' R.2:10-2." State v. La Porte, 62 N.J.312, 318-19 (1973).
The court's instruction undoubtedly injected additional doubt about Jamal's credibility. But, it was already significantly impaired. Jamal had a prior felony conviction significantly, it was for an offense similar to the one charged in his brother's case. Jamal had an obvious interest in exculpating his brother. He also offered an implausible explanation for the storage of the documents and photographs some as recent as 2011 in the third-floor apartment. He characterized the documents as "just old mail" although they were actually receipts that defendant apparently personally received, in many cases from businesses near the Irvington house, and apparently deposited in the house by defendant. On redirect, Jamal admitted that defendant visited the Irvington home essentially confirming that defendant may have had an opportunity to secrete drugs there. In sum, the instructions regarding sequestration, although a mistaken exercise of the court's discretion, were not alone sufficient to warrant reversal of the conviction.
We briefly address defendant's remaining points. We discern no error in the court's decision to instruct the jury that possession may be joint as well as sole. The court did so after the defense elicited evidence that Khalid or others may have occupied the third floor. Although the clear purpose of that evidence was to suggest that a third-party possessed the drugs found in the apartment, the evidence could also have led the jury to conclude that the third-party's possession was joint with defendant. The court reasonably determined that absent its instruction on joint possession, the jury may have concluded that the State was obliged to establish that defendant solely possessed the seized drugs and paraphernalia, which was not the case.
We reject defendant's argument that the court's instruction amounted to a substantive amendment of the indictment. The indictment charged possession without reference to whether it was actual or constructive, or joint or several. It was the court's obligation to mold the instruction to the evidence. State v. Gentry, 439 N.J. Super. 57, 72 (App. Div. 2015) (stating "it is often important to mold jury instructions so that the jury clearly understands how the evidence in this particular case relates to the legal concepts addressed in the charge").
Defendant's challenge to the testimony of Holloway, the narcotics expert, lacks sufficient merit to warrant discussion. R.2:11-3(e)(2). We discern no violation of the principles and guidelines set forth in State v. McLean, 205 N.J.438 (2011), and State v. Odom, 116 N.J.65 (1989).
Finally, the court did not violate defendant's constitutional rights in relying on his past convictions in granting the State's motion for a non-discretionary extended term. Defendant misplaced reliance on Alleyne v. United States, ___ U.S.___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The United States Supreme Court held that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Id.at , 133 S. Ct.at 2155, 186 L. Ed. 2d at 321. However, the Court expressly declined to revisit its holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), recognizing "a narrow exception" enabling trial judges to find the fact of a prior conviction. Alleyne, supra, ___ at ___ n.1, 133 S. Ct.at 2160 n.1, 186 L. Ed. 2d at 327 n.1.
To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).
1 In a bureau on the landing outside the apartment, police seized a handgun. Ammunition for the weapon was found in the apartment. As noted, defendant was acquitted of offenses related to the weapon.
2 The detective's name is also spelled "Myers" in the record.
3 On cross-examination, Meyers denied stating that Jamal was the owner, stating only that he was "associated with" the property.
4 For convenience, we will use the first names of defendant's brother and cousin. We mean no disrespect by this informality.
5 Inasmuch as Jamal testified on October 10, 2013, the dates apparently did not make sense, unless Jamal was incarcerated for a significant period pre-conviction. The discrepancy was unexplained.
6 In a side-bar conference, the prosecutor asked defense counsel to produce a document that apparently was mentioned in an off-the-record conference in chambers. Defense counsel responded: "At this point I don't know if the witness brought it. As I told the Court in chambers this witness claims that she had prices quoted to her for insurance for a car and . . . a document from the Insurance Agent that I haven't seen yet."
7 A copy of the order is not included in the record. However, the trial judge read it into the record.
8 We presume that Jamal, along with a list of others, was mentioned as a potential witness in the course of jury selection, inasmuch as the prosecutor stated that is why he placed Jamal on the joint witness list in the first place. However, we have not been provided with a transcript of jury selection, and there is no evidence that Jamal was in court when his name was mentioned.