STATE OF NEW JERSEY v. MIGUEL A. MARMOLEJO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL A. MARMOLEJO a/k/a

MIGUEL MARMOEJAS,

MIGUEL MARMOLEJO,

Defendant-Appellant.

September 26, 2016

 

Argued September 14, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-12-2884.

Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, of counsel and on the briefs).

Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Ms. Anderson, of counsel and on the brief).

PER CURIAM

After his motion to suppress was denied, defendant Miguel A. Marmolejo entered a guilty plea to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and 2C:35-5(b)(3). The plea was "open," meaning sentencing would be imposed at the judge's discretion within lawful ranges. The prosecutor dismissed the third count of the indictment, a charge of second-degree possession of cocaine with intent to distribute within 500 feet of a public park or facility, N.J.S.A. 2C:35-7.1. We reverse because of the manner in which the hearing was conducted. Defendant may renegotiate, or withdraw, from his guilty plea. Should he choose to withdraw because no new agreement can be reached, a new suppression hearing will be conducted.

Defendant, who at age forty-five had been convicted of five prior indictable crimes and a number of disorderly persons offenses, was sentenced on September 13, 2013, to a three-year probation term, and payment of appropriate fines and penalties. The judge explained his sentencing decision, unexpected in light of defendant's criminal history, was based on defendant's active participation in drug treatment and compliance with an intense outpatient drug treatment program. The judge also found "encouraging" comments defendant made at sentencing.

I.

A.

Immediately before the suppression hearing began, defendant's trial counsel, a staff attorney with the Office of Public Defender (OPD), stated

[COUNSEL]: . . . Before we proceed, Mr. Marmolejo wants me to place on the record the fact that he does not want to proceed with me as his attorney.

THE COURT: Oh. All right. I think that's a little

[COUNSEL]: I'm -- Judge, he wants me to place on the record the reasons, so if I could do that?

THE COURT: All right.

[COUNSEL]: . . . Your Honor, Mr. Marmolejo had -- I had sent him an e-mail indicating to him that I was going to meet with him Atlantic City to -- I was going into the building to observe where this transaction or the beginning of this investigation took place.

I did not meet with Mr. Marmolejo because I was on a limited time period, so I went to the State's office, myself, took a look at the office and where the officer's desk was and the view from the officer's desk into the area.

Mr. Marmolejo is upset with me because I sent him an e-mail that indicated that I was going to meet with him, but instead, I chose not to meet with him.

One of the concerns was that I know that the State does not want Mr. Marmolejo on the property. And, I just wanted to get a view of what the scene was.

So, Mr. Marmolejo is upset with me because of that.

The other reason Mr. Marmolejo is upset is that my investigator, who did go out to the same office and took some pictures from the office, he was also supposed to meet with Mr. Marmolejo and he will testify that he actually called Mr. Marmolejo to meet him, did not get a response from Marmolejo, went down and took the pictures, himself.

Mr. Marmolejo believes that I have duped him not once but twice, and because of that, had he known that I wasn't going to meet with him, he would have hired an attorney and not proceeded with my services.

At counsel's request, the motion judge heard directly from defendant

THE DEFENDANT: I gave her --

THE COURT: Yeah, what else?

THE DEFENDANT: -- at least two, three weeks of e-mails and phone calls to her office letting her know that I had additional pictures in the daytime

THE COURT: Uh-huh.

THE DEFENDANT: -- and videotape that

THE COURT: Uh-huh.

THE DEFENDANT: -- I had filmed from the location where the officers are indicating and alleging that I was in possession -- in a transaction of distributing drugs.

And, she never responded until this morning she's telling me that she's been busy until 5 o'clock when, in fact, me and my wife was there yesterday at 4:30 in her office and she had left.

THE COURT: Mm-hmm.

THE DEFENDANT: And, the secretary told us, she's my witness, that she had left already from the

THE COURT: I see.

THE DEFENDANT: So, she never got the CD.

THE COURT: Uh-huh.

THE DEFENDANT: And, she never wanted to see the videotape that I video -- I have four videotapes that I've shown her.

THE COURT: Yeah.

THE DEFENDANT: That she's completely wrong for what she's trying to do. To top things off, I got videotape of the office and pictures in the CD that I brought to her and she's telling me that this is the location and the second floor window that she went -- telling me she was going to go and let me know to meet her over there and she didn't. And, she went by herself. She told me -- and took this picture.

And, I can prove that this picture is from the first floor and not the second floor.

THE COURT: Just, okay. So, --

THE DEFENDANT: And, she doesn't want to even see a video.

THE COURT: -- should we have a trial on this? What do you want to do? Take the stand and I'll call and I'll call you and I'll call her investigator

THE DEFENDANT: Oh, no, Your Honor.

THE COURT: -- and do all these things.

THE DEFENDANT: No, Your Honor. I just thought

THE COURT: Listen. You have an attorney. You have -- you were arraigned in this case over a year ago. This has been going on

THE DEFENDANT: Two years ago.

THE COURT: -- much too long.

THE DEFENDANT: I understand.

THE COURT: And, you are going to -- you have applied for the services of the Public Defender.

THE DEFENDANT: Yes, sir.

THE COURT: You've been approved for those services. You have a public defender --

THE DEFENDANT: Yes, sir.

THE COURT: -- who is entirely competent and I'm not going to sit here and listen to you whine about it for the rest of the afternoon. Do you understand me?

THE DEFENDANT: For the record, I'm not whining. I have

THE COURT: You are whining.

THE DEFENDANT: -- additional evidence that she doesn't want to look at and this is first-floor picture. She's telling me it's a second-floor picture.

THE COURT: Listen. Look, if you want me to look at it when we get the case going, I'll look at it. Okay? What difference does it make if she looks --

THE DEFENDANT: There's no file.

THE COURT: -- at it?

THE DEFENDANT: There's no file.

THE COURT: She's got what she thinks she needs. This is an old case --

THE DEFENDANT: Mm-hmm.

THE COURT: -- that should have been disposed of a long time ago. It's a simple case.

THE DEFENDANT: It is -- it is not my fault, Your Honor.

THE COURT: It's simple.

THE DEFENDANT: I've been here --

THE COURT: So, have a seat.

THE DEFENDANT: -- every time.

THE COURT: Have a seat.

THE DEFENDANT: It's not my fault.

UNIDENTIFIED: Sit down, sir.

THE COURT: Have a seat.

THE DEFENDANT: You could have took care of it a long time --

THE COURT: And, we're going to have --

THE DEFENDANT: -- ago.

THE COURT: You asked for a suppression motion. You're about to get one. I don't care whether you

THE DEFENDANT: I guess, for the record, --

THE COURT: -- think your lawyer --

THE DEFENDANT: -- that's not the picture from the location that the officer said he had taken the picture.

THE COURT: Whatever. How do we know? We're going to hear from that officer or --

THE DEFENDANT: How do we --

THE COURT: -- those officers. So, just, you're going to have to just deal with it, Mr. Marmolejo. This is where we are.

THE DEFENDANT: Your Honor, you've given me rights and you're reading me my rights. That's why I'm going to the motion to suppress hearing. And now, apparently, you violated my rights.

THE COURT: Whose violated your rights?

THE DEFENDANT: You are.

THE COURT: Oh, okay.

THE DEFENDANT: Because I'm explaining to you --

THE COURT: Allow me to apologize.

THE DEFENDANT: -- she's telling me one thing and she's doing another. And, I've been trying

THE COURT: [Counsel] --

THE DEFENDANT: -- to get in touch with her for two months.

THE COURT: Sir, one of us talks at a time --

THE DEFENDANT: Sorry about that.

THE COURT: -- and mostly it's going to be me if I'm already talking.

THE DEFENDANT: Yes.

THE COURT: All right? This attorney is a veteran attorney with the Public Defender's Office. You may not think that she's given you the kind of service that you deserve, but I can tell you something. She's been doing it for years and she's been doing a nice job.

So, maybe the problem is you and not her. Okay?

THE DEFENDANT: Your Honor, for the record, I have videotape that she still --

[COUNSEL]: Just --

THE COURT: I don't want to hear about your videotape.

THE DEFENDANT: She still hasn't looked at it.

THE COURT: Look, I'm going to have you taken into custody and we'll do this some other day from the jail if you don't let me get on with this hearing.

THE DEFENDANT: Why?

THE COURT: I'm going to give you a hearing today. On a suppression motion that has been filed on your behalf. If you don't want it, you can wait in the jail until you're ready to have it.

THE DEFENDANT: Your Honor, why?

THE COURT: Because you're obstructing the operation of the business of this court. Period.

THE DEFENDANT: I don't mean to obstruct it, honestly.

THE COURT: Well, you're doing it. You need to stop.

Defendant said nothing further and the hearing proceeded.

Two witnesses testified on behalf of the State: Atlantic City Police Department Detective Jeremy Nirenberg, on temporary assignment to the Division of Criminal Justice, Violent Crimes and Narcotics Task Force, and Atlantic County Sheriff's Department Lieutenant James Sharkey, who on the date of arrest was also temporarily assigned to the Task Force. Both said that on September 28, 2011, at around 2:00 p.m., they were talking in Sharkey's cubicle, located in the northeast corner of the second floor of the Casino Control Commission building in Atlantic City. The building's windows overlook Ocean Avenue, an area that Nirenberg described as "notoriously known for its street-level narcotic activity. High crime, also, activity."

Outside the building window, across the street, the officers saw a man sitting in a blue Mitsubishi Montero, later identified as defendant. From their vantage point approximately fifteen to twenty feet away, the officers testified they could see down through defendant's front windshield. They saw him reach into his left front pocket and pull out a baggie containing green vegetation. Defendant pulled out a second bag containing a white powdery substance. They believed the bags contained marijuana and cocaine respectively. Nirenberg added that he observed defendant hold up smaller baggies, reddish or orange in color, which he believed were commonly used for drug distribution.

Nirenberg and Sharkey ran downstairs, joined by a third officer. As they approached the vehicle, Nirenberg saw defendant stuff the items in his sweatpants. They arrested him, searched him, and found drugs marijuana and cocaine in clear plastic bags and numerous small bags, red or orange in color.

Nirenberg subsequently prepared an "investigative report" in which he said that at the time of their observations, he and Sharkey were "conduct[ing] surveillance from an undisclosed location . . . ." He used the phrase because when defendant was arrested, the location of the Task Force office in the Casino Control Commission building was not generally known. Through Sharkey's testimony, the State introduced photographs taken from the cubicle window depicting the approximate location of the car at the time of arrest. The photos purported to show that the officers' observations were physically possible.

Defendant's first witness was an OPD investigator who testified that he too had taken photographs of the street from Sharkey's cubicle. When he took the photographs, defendant allegedly parked his vehicle in the same spot it was located when he was arrested. Defendant's side windows were tinted. All the photographs dated from approximately a year after the arrest. Once the investigator's testimony concluded, counsel advised the court that defendant also wanted to testify and wanted her to recall Sharkey.

The judge refused to allow counsel to recall Sharkey and confirmed defendant's intent to testify with him directly. Defendant asked if he could explain something to the judge. The judge declined.

Defendant testified that he parked on Ocean Street because he was on his way to work at Ocean Rolling Chairs. He disputed the officers' testimony regarding the location of his vehicle. Defendant said on the day in question, he grabbed his keys, headphones and Walkman, and as he was leaving the car, Task Force agents approached him with guns drawn.

Defendant initially implied he had taken pictures of Sharkey's office from the interior. He then retreated from the claim, explaining that when he tried to enter the premises, he had been refused entry. Defendant nonetheless described the interior of the office, adding that he was "an architect by trade," and that the furnishings, curtains, and a partition made it "impossible" for the officers to have seen inside his vehicle.

Defendant stated that he took the photos of the office in October 2012. When he tried to go into the building, he was "threatened . . . with trespassing charges and arrest[] if I wouldn't stay away . . . ." He claimed he then "went to Internal Affairs and I reported what happened. Then I started going -- and, not only with the [ladder.] I would get a copper pipe from Home Depot and take pictures with the -- with the pipe extended up towards the window." Although unclear, defendant seemed to be saying that he took those photos "soon after" the event, in October 2011. He testified that between the pictures taken through the use of a copper pipe in 2011, and by climbing a ladder he placed on the side of the Casino Control Commission building after October 2012, he had taken over a hundred pictures and videos of Sharkey's cubicle.

It is not clear from the transcript which photos or videos were admitted into evidence. At the close of the proceeding, the judge said he wanted "all the ones that have been marked [] can we have them marked for evidence for the limited purposes -- of this hearing? Both defendant and the State exhibits." None were provided in the brief appendix.

When confronted with his criminal history, defendant insisted his 1999 New Jersey conviction for third-degree aggravated assault, fourth-degree unlawful possession of a weapon, and fourth-degree tampering with evidence, occurred as a result of a guilty plea entered after the jury was unable to reach a verdict and his witnesses failed to appear. The certified judgment indicated defendant was convicted by a jury. Defendant also disputed one of his New York convictions, claiming that he was incarcerated in New Jersey at the time and that therefore the record was wrong.

B.

In the judge's written decision three weeks after his abbreviated denial of the motion the day of the hearing, he found the officers and the defense investigator credible. He noted that the defense investigator's photographs were only as "reliable as the defendant's word regarding where his car was parked on September 28, 2011." The judge added

The defendant himself came off as a moderately unhinged person -- with his ladder-climbing/copperpipe-extending renditions of how he took hundreds of photos of the inside of this government office over an 18-month interval. His record of convictions in 2 states over the last 12-15 years didn't help him very much either.

The bottom line is that the clear balance of credibility weighs in favor of the two officers. They are experienced veterans who have been involved in scores (if not hundreds) of CDS investigations. They had the training and experience to recognize and "process" what they saw Mr. Marmolejos handling and doing in his car that day. They were in their own offices when they saw it -- so there can be no question but that they had a right to be where they were. When they went downstairs, they had probable cause to arrest the defendant. Once they arrested him, the CDS and packaging materials were properly seized incident to that arrest.

The matter was originally listed on the excessive sentence calendar, but was removed at counsel's request and placed on our regular calendar of appeals. See R. 2:9-11.

C.

The issues defendant raises for our consideration are as follows

POINT I

THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR SUPPRESSION HEARING BECAUSE THE JUDGE'S DISMISSIVE REMARKS AND THREAT TO SEND HIM TO JAIL, AND THE JUDGE'S UNJUSTIFIED CHARACTERIZATION OF HIM AS "A MODERATELY UNHINGED PERSON," REFLECTED PARTIALITY. (Not Raised Below.)

POINT II

THE TRIAL JUDGE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO COUNSEL OF CHOICE AND TO REPRESENT HIMSELF BY FAILING TO ENGAGE IN THE REQUISITE INQUIRIES, AND THREATENING TO SEND HIM TO JAIL FOR OBSTRUCTION WHEN HE ATTEMPTED TO EXERCISE THOSE RIGHTS.

A. Mr. Marmolejos Was Denied His Right To Counsel of Choice.

B. Mr. Marmolejos Was Denied His Right Of Self-Representation.

POINT III

GIVEN THE BREAKDOWN IN THE ATTORNEY-CLIENT RELATIONSHIP, THE JUDGE'S FAILURE TO ADVISE DEFENDANT OF HIS RIGHT NOT TO TESTIFY AND THAT HIS TESTIMONY COULD BE USED AGAINST HIM, OR TO CONFIRM THAT DEFENSE COUNSEL HAD DONE SO, VIOLATED THE DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION. (Not Raised Below).

POINT IV

BECAUSE THE STATE FAILED TO PROVE THAT THE SEARCH-INCIDENT-TO-ARRESTEXCEPTION JUSTIFIED ITS WARRANTLESS SEARCH, THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED.

II.

The difficulties faced by this judge are familiar to those who have been assigned to preside over criminal calendars. For example, immediately before the beginning of a hearing or trial, a defendant may express dissatisfaction with the public defender assigned to represent him, or the private attorney he has hired, albeit the grounds seem frivolous. If counsel is a public defender, defendants ask for a "real lawyer," or accuse their lawyer of being in league with the State, or assert that if granted a lengthy enough postponement, they will be able to raise the money with which to retain private counsel. Meanwhile, the judge knows there were witnesses waiting to testify and that if the matter is postponed, it will inconvenience them and all parties, and create another significant delay in the disposition of the matter.

In this case, however, defendant's complaints did not even rise to that level. The objection he expressed to the judge was only that his attorney had not looked at the photographs and videos he claimed to have taken.

When defendant expressed his concern, the judge could have reassured defendant that the attorney's judgment on matters of strategy were important, the product of specialized education, training, and substantial experience, and moved on. Or he could have postponed starting the hearing for a few minutes to allow counsel the opportunity to look at the materials, thus addressing defendant's complaint. The judge could have also explained that he lacked the authority to transfer the case to another public defender. He could have attempted to elicit from defendant whether he wanted to retain private counsel, or if that was feasible.

Instead of exploring the issue in a neutral manner, the judge accused defendant of "whining." The judge threatened to revoke defendant's bail and incarcerate him in order that the hearing defendant had requested could go forward.

A judge is granted broad discretion in controlling the courtroom. D.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346 (2008). In assessing whether an abuse of that discretion has occurred, the allegation "must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact." Ibid.

Judges have the responsibility and the authority to control their courtroom, to maintain decorum, and to prevent conduct which may improperly impact on the process. See State v. Castoran, 325 N.J. Super. 280, 285 (App. Div. 1999), certif. denied, 163 N.J. 78 (2000). This discretion includes, for example, restricting dress or conduct that may have the effect of being "impermissibly testimonial in nature" because the right to a fair trial and due process is balanced against other rights, such as the right of free speech. Ibid.

Once defendant's attorney brought defendant's complaints to the attention of the court, the judge was required to address them in a neutral manner

The code of judicial conduct, Canon 3A(3), requires that a judge "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity . . . . A judge must conduct a trial in a fair and impartial manner refraining from remarks that might prejudice a party and influence the minds of the jury.

[Mercer v. Weyerhaeuser, 324 N.J. Super. 290, 297-98 (App. Div. 1999) (citing James v. City of E. Orange, 246 N.J. Super. 554, 564 (App. Div. 1991)).]

Obviously, there was no jury at the suppression hearing, however, the obligation to "be patient, dignified, and courteous" remained.

When at the eleventh hour a criminal defendant expresses dissatisfaction with his or her attorney, a judge must balance the legitimacy of the complaint, a defendant's right to an attorney of his or her own choosing, or even of self-representation, against the need for cases to be resolved promptly and efficiently. See State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.), certif. denied, 101 N.J. 266 (1985).

It is difficult and wearing to balance the fair and efficient administration of justice against the legitimate concerns of a criminal defendant, or at times the expression of marginally legitimate or even illegitimate concerns. Here, a few more questions, a brief but expanded dialogue, and simple courtesy towards defendant would have sufficed to meet the obligation. No such effort was made. Had such an effort been made, the likely outcome would have been the hearing would have just moved forward.

With little explanation and less justification, after telling defendant he was "whining," the judge also told defendant "if you don't want [the suppression motion] you can wait in the jail until you're ready to have it." We know of no authority for the revocation of defendant's bail in these circumstances.1

It may well be that defendant was raising his voice or otherwise behaving inappropriately in the courtroom. However, the judge made no such observations on the record.

Furthermore, when counsel advised the court at the close of the OPD investigator's testimony that her client wanted her to recall Sharkey, the judge just said "no[.]" For the judge to summarily and without any explanation foreclose defendant from recalling a witness was improper. See State v. Garcia, 195 N.J. 192, 202 (2008) ("[T]he right of an accused to present witnesses in his own defense 'is a fundamental element of due process of law.'") (quoting Taylor v. Ill., 484 U.S. 400, 409, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798, 810 (1988)).

When informed that defendant wanted to testify, the judge asked him directly if he wanted to do so. Defendant responded in the affirmative. When defendant asked the judge if he could "explain something to you[,]" the court declined. Again, even a brief explanation of the reasons that unsolicited statements by a criminal defendant have the capacity to pose hazards to his defense would have established that the judge's ruling was premised upon his role as a neutral arbiter rather than a ruling that appeared premised upon animus directed at defendant. It may have also assured defendant that the judge was being even-handed, and attempting to ensure the process was fair.

Lastly, in his written decision, the judge described defendant as "moderately unhinged" due to defendant's testimony that he photographed the interior of a second-floor office in Atlantic City by climbing a ladder placed against a public building, and by maneuvering a copper pipe and camera. While defendant's narrative was clearly incredible, the judge's use of sarcasm was unnecessary and conveyed bias.

In the face of "accusation[s] of prejudicial actions by a trial judge" we look to the entire record. State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971). After reviewing the entire record, we cannot say that the judge's decisions and statements did not prejudice the fairness of the process.

Moreover, the judge's decision on the merits of the motion turned on credibility findings. Even if the motion to suppress was, in the final analysis, properly denied, the judge's comments and interactions with defendant raised the specter of unfairness to an extent that cannot be ignored. Ibid. ("In reviewing the transcript our function is to ascertain the validity of the claim of prejudice, and we are not to reach a conclusion of harmless error because we may believe that the defendant in fact was guilty as charged."). In this case, the judge was the fact-finder, and we must therefore presume his bias against defendant had an effect on the outcome.

Curiously, the judge fashioned a sentence that ran counter to any seeming prejudice. Nonetheless, we cannot add the lenient sentence into the calculus of whether his bias or prejudice against defendant during the suppression motion was improper.

The judge did not courteously address defendant's concerns. He moved the suppression hearing forward by threatening defendant with jail if he persisted in his complaints. The judge's use of the term "moderately unhinged" in his written denial of the motion to suppress does not inspire confidence in his decision making. Simply put, he was disrespectful to defendant. In the process of efficiently managing his courtroom, the judge exceeded the bounds of a reasonable exercise of discretion, and of his authority. Thus we do not reach defendant's specific points of error. In light thereof, should the motion be heard anew, we take no position on the outcome.

Reversed and remanded.

1 The judge could have conducted contempt proceedings pursuant to Rule 1:10-1 however, the record does not support the notion that defendant's limited comments rose to the level of conduct which "'undermine[d] the court's authority . . . [or] interfere[d] with or obstruct[ed] the orderly administration of justice.'" Amoresano v. Laufgas, 171 N.J. 532, 549-50 (2002) (quoting In re Daniels, 118 N.J. 51, 61, cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990)). It is not clear from the record that defendant wanted to do more than air his grievances regarding the fact his attorney was ignoring the material he claimed he had gathered.