STATE OF NEW JERSEY v. DAVID GASKINS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3216-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID GASKINS,
Defendant-Appellant.
_________________________________________
Submitted October 31, 2017 – Decided December 28, 2017
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
08-05-0729.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian D. Driscoll, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant David Gaskins appeals from an order entered by the
Law Division on December 15, 2015, which denied his petition for
post-conviction relief (PCR). We affirm.
I.
Defendant was charged with third-degree possession of a
controlled dangerous substance (CDS), cocaine,
N.J.S.A. 2C:35-
10(a)(1) (count one); first-degree possession of a CDS, cocaine,
with intent to distribute, in a quantity of five ounces or more,
N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two); third-degree
possession of a CDS, heroin,
N.J.S.A. 2C:35-10(a)(1) (count
three); third-degree possession of a CDS, heroin, in the quantity
of less than one-half ounce, with intent to distribute,
N.J.S.A.
2C:35-5(a)(1) and (b)(3) (count four); first-degree maintaining a
CDS production facility,
N.J.S.A. 2C:35-4 (count five); second-
degree possession of a weapon while committing certain CDS
offenses,
N.J.S.A. 2C:39-4.1 (count six); and second-degree
possession of a weapon by certain persons not to have weapons,
N.J.S.A. 2C:39:7(b) (count seven).
In our opinion on defendant's direct appeal, we summarized
the evidence presented at trial. State v. Gaskins, No. A-6204-09
(App. Div. Jan. 10, 2014) (slip op. at 2-10). We noted that in
September 2007, Detective Orlando Robinson of the Paterson Police
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Department commenced an investigation of a suspected drug dealer
with the street name of "Divine." Id. at 2.
A confidential informant (CI) told Robinson that Divine was
a black male who made deliveries of crack cocaine from a 1991
Dodge van with a New Jersey license plate number. Id. at 3. The
CI said Divine possessed weapons and operated out of a location
on River Street in Paterson. Ibid.
Robinson arranged for the CI to make a "controlled buy" of
illegal drugs from Divine. Ibid. The CI contacted Divine, and
Robinson observed a man exit the River Street Location. Id. at 3.
The CI identified the man as Divine, and the CI met the man at a
prearranged site. Id. at 3–4. The CI gave Robinson a quantity of
crack cocaine that he had purchased with the money that Robinson
had provided to him. Id. at 4.
Robinson checked the registration on the 1991 Dodge van and
learned that the van was registered to Frankie Gaskins, Jr., who
resided on 12th Avenue in Paterson. Ibid. During his search for a
photo of Frankie Gaskins, Jr., Robinson came across a photo of
defendant, who the CI later positively identified as Divine. Ibid.
In October 2007, Robinson conducted further surveillance of
defendant and saw him leave the River Street location, enter the
Dodge van, and later meet with known drug dealers. Id. at 5. At
those meetings, the drug dealers entered the van and remained in
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the van for a short period. Ibid. Thereafter, defendant would
return to the River Street location. Ibid.
Based on these facts, Robinson sought a warrant to search the
second-floor apartment and attic of the River Street location,
defendant's person, and the van that defendant was seen using.
Ibid. The search warrants were issued and executed on November 5,
2007. Ibid. Defendant was found in the stairwell between the second
floor and attic. Ibid. Defendant was arrested and the officers
recovered keys from his pocket. Id. at 5-6. He was in possession
of $1017 in cash. Id. at 6.
The officers used the keys to open a closed closet door in
the front bedroom of the apartment. Ibid. They found a large
quantity of suspected crack cocaine. Ibid. They also found a jacket
which contained documents addressed to David L. Gaskins, a handgun,
and thirty—three glassine envelopes of suspected heroin. Ibid.
In the bedroom, the officers also found mail and a receipt
with defendant's name, drug paraphernalia, a digital calculator,
a digital scale, and other evidence. Ibid. Additional bags of
suspected crack cocaine were found in another bedroom. Id. at 6-
7. The suspected drugs tested positive for CDS. Id. at 7.
Audrey Robinson testified for the defense. Id. at 8. Ms.
Robinson stated that defendant lived with her in a residence on
Sheridan Street in Paterson. Ibid. She said he was only present
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at the River Street location to take care of a pet belonging to
his cousin, Frankie Gaskins. Ibid. She also said defendant was the
father of her three children.
Defendant elected not to testify. Ibid. However, he presented
a letter from a cable provider, which indicated that other
individuals had been billed for service at the second-floor
apartment on River Street. Ibid. In addition, defendant presented
utility bills for the apartment addressed to one of those
individuals. Ibid.
The jury found defendant guilty on all counts. Ibid.
Thereafter, the trial judge denied defendant's motion for a new
trial based on newly discovered evidence, and granted the State's
motion for imposition of an extended term pursuant to
N.J.S.A.
2C:43-6(f). Id. at 8–9. The judge sentenced defendant to an
aggregate term of twenty-nine years of incarceration, with sixteen
years of parole ineligibility. Ibid.
Defendant appealed from the judgment of conviction dated July
30, 2010, and raised the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE BECAUSE THERE WERE
INSUFFICIENT FACTS SUPPORTING A FINDING OF
PROBABLE CAUSE.
5 A-3216-15T2
POINT II
THE COURT ERRED IN REFUSING TO DISCLOSE THE
IDENTITY OF THE CONFIDENTIAL INFORMANT AND
SURVEILLANCE POINTS.
A. The Court erred in denying defendant's
motion to discover the identity of the CI.
B. The Court erred in denying defendant's
motion to disclose surveillance points.
POINT III
DEFENDANT'S RIGHT TO CONFRONT WITNESSES
AGAINST HIM WAS DENIED DUE TO THE ABSENCE OF
REQUIRED HEARINGS ON HIS MOTIONS TO OBTAIN
DISCOVERY AND TO SUPPRESS EVIDENCE.
POINT IV
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO EXPLORE THE ISSUE OF THIRD-PARTY
GUILT.
POINT V
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END
OF THE STATE'S CASE; THE ABSENCE OF EVIDENCE
OF DEFENDANT'S POSSESSION OF ANY ITEMS IN THE
BACK ROOM REQUIRED THE COURT TO SUA SPONTE
STRIKE JURY CONSIDERATION OF THAT EVIDENCE.
R. 3-18-1; R. 2:10-2.
POINT VI
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A NEW TRIAL BASED ON NEWLY-
DISCOVERED EVIDENCE. R. 3:20-1.
POINT VII
DEFENDANT'S SENTENCE WAS EXCESSIVE.
We rejected defendant's arguments on appeal and affirmed
defendant's convictions and sentences. Gaskins, No. A-6204-09
6 A-3216-15T2
(slip op. at 26). The Supreme Court denied defendant's petition
for certification. State v. Gaskins,
218 N.J. 531 (2014).
II.
In August 2014, defendant filed a pro se petition for post-
conviction relief (PCR). The court appointed PCR counsel to
represent defendant. Counsel did not file an amended petition.
Defendant later filed a certification dated May 22, 2015, in which
he asserted that he was denied the effective assistance of
appellate counsel.
In his certification, defendant stated that his appellate
attorney was deficient because counsel failed to argue that: (1)
the trial court erred by failing to strike the testimony of
Detective Robinson that he had seen defendant selling drugs on
prior occasions; (2) the assistant prosecutor engaged in
misconduct by questioning Robinson about the two-week period prior
to his arrest and the related underlying investigation; (3) the
prosecutor improperly badgered Audrey Jackson on the witness stand
by asking her if there was a time in the previous twenty years
when defendant did not live with her; (4) the prosecutor committed
misconduct during summations when he attacked and belittled the
defense; and (5) the prosecutor inflamed the jury by placing the
gun, ammunition, and all of the drugs within reach of the jurors.
7 A-3216-15T2
On December 3, 2015, the PCR court heard oral argument on the
petition. At the argument, PCR counsel stated that defendant was
"arguing that he received ineffective assistance of Appellate
counsel, not his trial counsel." PCR counsel presented arguments
in support of the claims in defendant's certification.
On December 15, 2015, the PCR judge placed his decision on
the record. The judge rejected defendant's claim that appellate
counsel was deficient because counsel did not argue on appeal that
the court erred by failing to strike certain statements in
Detective Robinson's testimony, which allegedly gave the jurors
the impression defendant was a drug dealer.
In his decision, the judge noted that on cross-examination,
defense counsel elicited Robinson's testimony and no motion was
made to strike the testimony or issue a curative instruction to
the jurors. The judge found that it was defense counsel's strategic
decision to elicit this testimony. The judge determined that
defendant had not shown that if appellate counsel had raised this
issue, the outcome of the appeal would have been different.
The judge then addressed defendant's claim that appellate
counsel erred by failing to argue on appeal that the prosecutor
improperly badgered Audrey Jackson on cross-examination. Defendant
asserted that the prosecutor asked Ms. Jackson whether there was
any time in the previous twenty years when defendant did not reside
8 A-3216-15T2
with her. According to defendant, the question was improper because
the prosecutor knew that in this period, defendant had been
incarcerated at least eight times.
The judge found that appellate counsel did not err by failing
to raise this issue on appeal. The judge determined that the
prosecutor properly questioned Ms. Jackson regarding her personal
knowledge of defendant's handwriting, employer, work hours, and
the reasons he went to the River Street apartment, where the search
warrant was executed and the CDS found. Defendant claimed he only
went to the River Street location to feed his brother's cat.
The judge also rejected defendant's contention that appellate
counsel was ineffective because counsel did not argue on appeal
that the prosecutor improperly inflamed the jury during his closing
argument by placing the gun, ammunition, and drugs within reach
of the jury. Defendant asserted that the prosecutor placed these
items near the jury to elicit an adverse reaction and motivate the
jurors to convict him. The judge noted that these items had been
admitted into evidence and the jurors had this evidence with them
in the jury room during deliberations.
The judge concluded that defendant had not raised a prima
facie case of the ineffective assistance of appellate counsel.
Therefore, defendant was not entitled to an evidentiary hearing
9 A-3216-15T2
on his petition. The judge entered an order dated December 15,
2015, denying PCR. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL. (NOT RAISED BELOW).
POINT II
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
PCR COUNSEL. (NOT RAISED BELOW).
POINT III
THE PCR COURT ERRED IN DENYING AN EVIDENTIARY
HEARING.
III.
The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution guarantee
criminal defendants the right to the effective assistance of
counsel. State v. O'Neil,
219 N.J. 598, 610 (2014) (citing
Strickland v. Washington,
466 U.S. 668, 686 (1984); State v. Fritz,
105 N.J. 42, 58 (1987)). "The right to effective assistance
includes the right to the effective assistance of appellate counsel
on direct appeal." Ibid. (citing Evitts v. Lucey,
469 U.S. 387,
396 (1985)).
To succeed on his PCR claim of ineffective assistance of
counsel, a defendant must meet the two-part test established by
Strickland,
466 U.S. at 686, and adopted by our Supreme Court in
Fritz,
105 N.J. at 58. Under Strickland, a defendant must show
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that counsel made errors "so serious that counsel was not
functioning as 'counsel' guaranteed by the Sixth Amendment."
Strickland,
466 U.S. at 688. Counsel's performance is deficient
if it "[falls] below an objective standard of reasonableness."
Ibid.
A defendant also must show that counsel's "deficient
performance prejudiced the defense." Id. at 687. The defendant
must show that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A "reasonable probability"
is a "probability sufficient to undermine confidence in the
outcome" of the proceeding. Ibid.
On appeal, defendant does not argue that the PCR judge erred
by finding he was not denied the effective assistance of appellate
counsel. Rather, defendant argues for the first time on appeal
that he was denied the effective assistance of trial counsel and
PCR counsel.
Ordinarily, we would not consider arguments that were not
raised and addressed by the trial court. Neider v. Royal Indemn.
Ins. Co.,
62 N.J. 229, 234 (1973) (citing Reynolds Offset Co. v.
Summer,
58 N.J. Super. 542, 548 (App. Div. 1959)). We have elected,
however, to exercise our discretion and address these arguments
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because the claims are entirely without merit and can be resolved
based on the existing record.
A. Claims Pertaining to Trial Counsel
Defendant raises three claims of ineffective assistance on
the part of his trial attorney. They pertain to Ms. Jackson's
passing comment that defendant had been incarcerated, testimony
by Detective Robinson, and alleged misconduct on the part of the
assistant prosecutor.
1. Ms. Jackson's Testimony
Defendant asserts that during cross-examination, Ms. Jackson
stated that defendant always paid the rent and other expenses for
the apartment they shared except when he was incarcerated.
Defendant asserts that defense counsel did not object to this
statement, but raised the issue with the trial judge after
defendant rested his case and the jury was excused. Defendant's
counsel asked the judge to address the issue.
The judge acknowledged that Ms. Jackson had referred to
incarceration, but the judge took no action. The judge noted that
he heard the comment, but did not want to draw any attention to
it. The judge said if defense counsel had objected to the comment
when it was made, he would have taken some action. The judge stated
that he thought defense counsel did not want to highlight the
remark.
12 A-3216-15T2
On appeal, defendant argues that it is clear from the record
that trial counsel's performance regarding Ms. Jackson's comment
was deficient and counsel's deficient performance prejudiced his
defense. The State agrees that Ms. Jackson's mention of
incarceration was improper, but argues that counsel's failure to
object was reasonable under the circumstances. The State further
argues that defendant was not prejudiced by the comment.
The record shows that Ms. Jackson had been asked whether
defendant had always provided money to pay the rent and support
their children. She replied, "Always." She stated that she never
had a problem in this regard, but added, "Unless he's incarcerated
then he can't pay it." The State notes the remark was isolated and
not accompanied by any testimony that defendant had previously
been convicted of a crime.
It should be noted that earlier, Ms. Jackson testified that
the rent was not paid on November 5, 2007, and because the rent
was not paid, she was forced to leave the apartment. The evidence
showed that defendant was arrested on November 5, 2007. Thus, as
the State argues, the jury could logically interpret Ms. Jackson's
comment about "incarceration" as a reference to defendant's arrest
on the charges at issue in this case.
Therefore, the record does not support defendant's claim that
counsel was deficient in failing to object to Ms. Jackson's comment
13 A-3216-15T2
about "incarceration." Moreover, the record does not support
defendant's contention that he was prejudiced by counsel's failure
to object. As noted, Ms. Jackson's comment was a passing reference
to "incarceration" and there was no testimony defendant had
previously been in jail on other charges.
2. Detective Robinson's Testimony
Defendant argues that his trial counsel was deficient because
when he cross-examined Detective Robinson, he asked him whether
he had ever seen defendant selling drugs. According to defendant,
Robinson stated that he had seen defendant sell drugs. Defendant
asserts defense counsel erred by failing to ask the trial judge
to instruct the jury to disregard the statement.
The record shows that during his direct examination of
Robinson, the assistant prosecutor asked him about his
observations during the period from October 21, 2007, to November
5, 2007. Robinson stated that he personally observed defendant at
the River Street location. He said he saw defendant talking on his
cell phone on the second-floor porch.
During cross-examination, the following colloquy between
defense counsel and Robinson ensued:
Q. Now, you don't know [defendant] personally,
do you?
A. No.
14 A-3216-15T2
Q. Prior to this incident, you hadn't seen him
before, is that correct?
A. No.
Q. You've never seen him selling drugs, is
that correct?
A. Prior to this incident?
Q. Right.
A. Yes.
Q. You have --
At this point, the assistant prosecutor objected, apparently
out of concern that further questioning might elicit testimony
about the CI. Out of the presence of the jury, the prosecutor
noted that Robinson had been instructed not to mention the search
warrant application.
Defendant's attorney stated that he did not intend to ask
Robinson about prior drug transactions. Rather, he wanted to ask
the detective if he "had seen [defendant] make any sales on the
day of the arrest." The cross-examination of Robinson continued.
Defense counsel told the judge he would strike the previous
question and rephrase it. Counsel asked Robinson whether he
observed defendant selling drugs on the day of his arrest, and
Robinson replied, "No."
Thus, the record does not support defendant's assertion that
his attorney erred by failing to object to Robinson's statement
15 A-3216-15T2
that he had seen defendant selling drugs. As noted, Robinson
answered "Yes" in response to the question, "You've never seen him
selling drugs, is that correct?" Moreover, defense counsel asked
the court to strike that question. He then asked Robinson whether
he had observed defendant selling drugs on the day of his arrest,
and Robinson said, "No."
Defendant further argues that his trial counsel was deficient
because he failed to object when Robinson referred to an
"affidavit." The record shows that, during direct examination, the
assistant prosecutor asked Robinson about his observations of the
River Street location from October 21 to November 5, 2007. On re-
cross-examination, the following colloquy ensued between defense
counsel and Robinson:
Q. While you were making those observations
did you observe [defendant] sell any drugs?
A. I mean if you want me to answer that that's
all part of the affidavit --
Q. Well, did you --
A. -- to answer that question.
Q. -- write that -- I'm going to show you
what's been marked.
Defendant argues that Robinson's reference to the "affidavit"
"obviously implied" that Robinson had seen him selling drugs during
his observations. We disagree. The reference to an "affidavit" did
16 A-3216-15T2
not imply that Robinson had seen defendant selling drugs, and it
would be unreasonable to assume the jury would interpret the
statement in that manner. Indeed, Robinson testified that he did
not see defendant selling drugs in the period at issue.
We therefore conclude that defense counsel was not deficient
in failing to object to Robinson's testimony regarding his
observations of defendant or his reference to an "affidavit."
Defendant also has not shown that he was in any way prejudiced by
counsel's alleged deficient performance regarding Robinson's
testimony.
3. Alleged Prosecutorial Misconduct
In addition, defendant claims defense counsel was deficient
because he did not object to a comment by the assistant prosecutor
in summation that "cultural differences" may be a possible
explanation for Ms. Jackson's lack of knowledge about defendant
and his work.
The record shows that in summation, defense counsel stated
that Ms. Jackson might have appeared nervous because this was her
first time in court. He commented upon Ms. Jackson's lack of
knowledge about defendant's whereabouts and his job. He stated:
Well, I submit to you that possibly there's a
cultural difference. Just because the
[p]rosecutor's wife may know everything about
. . . his job and his boss, and about where
he is [twenty-four] hours a day, not everybody
17 A-3216-15T2
has that same type of relationship. Perhaps
it's a cultural difference.
In his summation, the assistant prosecutor also commented on
Jackson's testimony. He stated:
Maybe it's a cultural difference. I don't
know. Your common sense will control. [Your]
alleged experiences will dictate whether you
judge her credibility as truthful or not. She
was with [defendant] for [eighteen] years,
according to her testimony. They lived
together. They had three [children] together.
She didn't know what his hours were . . . you
know, use your common sense and credibility.
If you have a significant other and you've
been together a significant period of time can
you answer any of those questions?
"Prosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to the
scope of the evidence presented." State v. Frost,
158 N.J. 76, 82
(1999) (citing State v. Harris,
141 N.J. 525, 559 (1995); State
v. Williams,
113 N.J. 393, 447 (1988)). A prosecutor's comments
do not justify reversal of a conviction, unless the comments are
"so egregious that [they] deprived the defendant of a fair trial."
State v. Wakefield,
190 N.J. 397, 438 (2007) (citing State v.
Smith,
167 N.J. 158, 181 (2001)).
As noted, the assistant prosecutor's comment was in response
to the summation of defense counsel, who had cited "cultural
difference" as a possible explanation for Ms. Jackson's lack of
knowledge about defendant and his work. The comment was not
18 A-3216-15T2
"improper" or "denigrating." Thus, there is no merit to defendant's
claim that his attorney should have objected to the prosecutor's
remark.
We therefore reject defendant's contention that he was denied
the effective assistance of trial counsel.
B. Claims Regarding PCR Counsel
On appeal, defendant argues he was denied the effective
assistance of PCR counsel. He contends PCR counsel was ineffective
because he improperly framed all of defendant's claims as claims
of ineffective assistance of appellate counsel.
We find no merit in this argument. Even if counsel erred by
failing to claim defendant was denied the effective assistance of
trial counsel, defendant was not prejudiced by any such error. We
have addressed defendant's claims of ineffective assistance on the
part of his trial attorney, and have determined that the claims
have no merit. Thus, the result here would have been the same if
those claims had been raised in the PCR court.
We therefore reject defendant's contention that he was denied
the effective assistance of PCR counsel.
C. Evidentiary Hearing
Defendant further argues that the PCR court erred by denying
his request for an evidentiary hearing on his petition. We
disagree. Notwithstanding his arguments to the contrary, defendant
19 A-3216-15T2
failed to establish a prima facie case of ineffective assistance
of trial or appellate counsel, and the existing record was
sufficient to resolve those claims. State v. Porter,
216 N.J. 343,
355 (2013) (citing R. 3:22-10(a)). Thus, an evidentiary hearing
was not required.
Affirmed.
20 A-3216-15T2
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