Opinion
DOCKET NO. A-5514-09T2 DOCKET NO. A-0860-10T2
04-02-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PATRICK R. MULDROW, a/k/a PATRICK R. MUDROW, PM, PAT MO, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBIN MULDROW, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellants (Jacqueline E. Turner, Assistant Deputy Public Defender, on the brief in A-5514-09; Kevin G. Byrnes, Designated Counsel, on the brief in A-0860-10). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondents in A-5514-09 and A-0860-10 (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, of counsel and on the brief). Appellant in A-5514-09 filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-04-0637.
Joseph E. Krakora, Public Defender, attorney for appellants (Jacqueline E. Turner, Assistant Deputy Public Defender, on the brief in A-5514-09; Kevin G. Byrnes, Designated Counsel, on the brief in A-0860-10).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondents in A-5514-09 and A-0860-10 (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, of counsel and on the brief).
Appellant in A-5514-09 filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendants Patrick Muldrow and his sister, Robin Muldrow, were convicted of multiple drug and weapons offenses. After a second trial that immediately followed, they were also convicted of numerous violations of N.J.S.A. 2C:39-7 (certain persons prohibited from possessing weapons). The judge imposed an aggregate forty-year term of imprisonment on Patrick, with a twenty-year period of parole ineligibility. As to Robin, the judge imposed an aggregate ten-year term, with a five-year period of parole ineligibility.
To avoid confusion, we use defendants' first names throughout the opinion. We intend no disrespect by this informality.
In these appeals, which we calendared back-to-back, Patrick raises the following points:
POINT IIn a pro se supplemental brief, Patrick argues:
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AS THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT CONTRABAND WOULD BE FOUND AT THE PROPERTY LOCATED ON CLEARSTREAM ROAD.
POINT II
THE JUDGE VIOLATED DEFENDANT'S RIGHT TO SELF-REPRESENTATION WHEN HE FAILED TO CONDUCT A HEARING AFTER THE DEFENDANT[] REQUESTED TO PROCEED PRO SE.
POINT III
THE TRIAL COURT ERRED BY NOT ASCERTAINING PERSONALLY WHETHER DEFENDANT WANTED TO ABSENT HIMSELF FROM THE TRIAL, RELYING INSTEAD ON THIRD-PARTY REPRESENTATIONS, IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS . . . . (Not Raised Below)
POINT IV
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
POINT IRobin raises the following points in her appeal:
APPELLANT CONTENDS THAT [THE] JUDGE . . . ERRED BY NOT RECUSING HIMSELF FROM THE PRE-TRIAL PROCEEDINGS DUE TO HIS INTEREST IN THE CASE, WHICH ULTIMATELY LED TO HIS RECUSAL FROM TRIAL.
POINT II
TRIAL COURT ERRED IN NOT ACCEPTING DEFENDANT'S ORAL MOTION TO DISMISS COUNSEL; BECAUSE COUNSEL STATED THAT HE WAS AFRAID OF APPELLANT AND WAS THREATENED BY HIM.
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE INDICTMENT SHOULD BE DISMISSED.
A. THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
B. THE PROSECUTION OF [DEFENDANT] FOR DRUGS FOUND IN MELVIN SHARPE'S CAMPER [GAVE] RISE TO THE APPEARANCE OF IMPROPRIETY, AS SHARPE, WHO WAS NOT CHARGED, HAD A NEPHEW IN THE INVESTIGATING POLICE DEPARTMENT WHO INTERVENED ON SHARPE'S BEHALF. (Not Raised Below)
POINT II
THE DEFENDANT'S RIGHT TO CONFRONTATION . . . AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS AND OTHER EVIDENCE FROM ABSENTEE WITNESSES. (Not Raised Below)
A. THE POLICE INFORMED JURORS THAT ROBIN MULDROW WAS UNDER SURVEILLANCE FOR NARCOTICS OFFENSES, IN EFFECT INFORMING JURORS THAT ANONYMOUS SOURCES HAD ACCUSED HER OF COMMITTING DRUG CRIMES.
B. THE FACT THAT THE POLICE HAD [DEFENDANT] UNDER SURVEILLANCE FOR NARCOTICS OFFENSES HAD NO PROBATIVE VALUE AND WAS UNDULY PREJUDICIAL.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE PROSECUTOR'S TACTIC OF PERSUADING THE JURY WITH CRITICAL FACTUAL MISREPRESENTATIONS. (Not Raised Below)
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below)
POINT VI
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED WHEN THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE DEFENDANT COULD BE CONVICTED OF A LESSER OFFENSE THAN THAT COMMITTED BY THE CO-DEFENDANT BASED ON DEFENDANT'S OWN CRIMINAL INTENT AND HER OWN PARTICIPATION IN THE CRIME. (Not Raised Below)
POINT VII
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR LEGAL GUIDANCE ON THE LAW OF ACCOMPLICE LIABILITY. (Not Raised Below)
POINT VIII
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE CONFUSING, INCOMPLETE, AND PREJUDICIAL INSTRUCTIONS ON THE LAW OF INTENT TO DISTRIBUTE. (Not Raised Below)
A. THE INSTRUCTION ON THE LAW OF ATTEMPT WAS INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL.
B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPT REQUIRES PURPOSEFUL CONDUCT AND THAT IT CANNOT FIND THAT THE DEFENDANT INTENDED TO ATTEMPT DISTRIBUTION KNOWINGLY.
POINT IX
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES . . . WAS VIOLATED.
A. SEARCH WARRANTS WERE IMPROPERLY ISSUED BASED ON REPRESENTATIONS BY A CONFIDENTIAL INFORMANT WHO DID NOT PROVIDE A BASIS OF KNOWLEDGE AND THERE WAS INSUFFICIENT POLICE CORROBORATION.
B. THE INITIAL WARRANTLESS POLICE ENTRY INTO THE CAMPER TRAILER WAS UNLAWFUL; THE SEARCH AND SEIZURE CANNOT BE JUSTIFIED BY PLAIN VIEW.
I.
Both defendants challenge the denial of their motions to suppress evidence seized pursuant to search warrants. The affidavit of Investigator David Fox of the Ocean County Prosecutor's Office, dated January 15, 2008, supported the issuance of search warrants for a property on Martin Luther King Drive in Lakewood (the MLK property), and a property on Clearstream Road in Jackson (the Clearstream property).
Fox, who was assigned to the Special Operations Group (SOG) of the prosecutor's office, detailed his years of training and experience in narcotics investigations. During the week of December 9, 2007, Fox met with "a reliable confidential informant" (CI) who provided him with information that an individual known as "Pat Mo" was distributing narcotics and guns. The CI provided a description of Pat Mo and his cell phone number, and said he could purchase cocaine from Pat Mo. Fox contacted Sergeant James Van de Zilver of the Lakewood Police Department. Van de Zilver was "familiar" with defendant and confirmed that he fit the CI's description and resided at the MLK property.
Fox, Van de Zilver and the CI met. The CI directed the officers to the Clearstream property and claimed that he had purchased drugs from Pat Mo at that location in the past. The CI said Pat Mo stayed there occasionally, but mainly used it as a "stash residence" for CDS and weapons. From a driver's license photo, the CI identified Patrick as being Pat Mo. Fox confirmed with the Motor Vehicles Commission that Patrick resided at the MLK property, and he checked Patrick's criminal history, which revealed seven prior arrests in New Jersey, including possession and distribution of marijuana and cocaine, and a felony arrest in New York for possession of narcotics with intent to distribute. Fox checked utility subscriber information for the Clearstream property. The utilities were in Robin's name, but Patrick was listed as the customer contact.
Surveillance of the Clearstream property began on December 21, 2007. Six days later, a surveillance team observed a pick-up truck drive into the driveway. Patrick was the passenger. The officers observed him exit the truck, walk around the property with a flashlight and remove a license plate from a car parked near the house and put it on another car, a tan Toyota Camry. Patrick placed a long, rectangular object in the trunk of the Camry before driving away. The next day, the surveillance team saw Patrick park the Camry in the driveway of the Clearstream property, exit with a cardboard box, enter the back door of the residence, return to the car, re-enter the residence and then drive away.
During the week of December 31, 2007, the CI contacted Fox and said he had spoken to Pat Mo, who was in possession of cocaine and ready to sell some. The officers arranged for a controlled buy, and surveillance units were sent to the Clearstream and MLK properties. At the Clearstream property, officers observed Patrick drive into the driveway, enter "a camper trailer" at the rear of the property, exit about twenty seconds later, enter the house and exit moments later. Patrick then drove away. The car he used, a "dark colored, four door sedan," was registered to Patrick at the MLK property.
In the presence of some of the officers, the CI called Patrick. Fox listened to the conversation and heard Pat Mo tell the CI to meet him at the MLK property to consummate the sale. Mobile surveillance teams followed Patrick, who drove directly from the Clearstream property to the MLK property.
Officers monitored the CI as he traveled to the MLK property with marked funds, exited his car, entered Patrick's car, re-entered his own car a short time later and drove away. The CI met with the officers at a pre-arranged location and gave them the white powdery substance he purchased from Patrick, which later tested positive for cocaine.
The CI informed Fox that Patrick hid guns in his vehicle and was going to Georgia in the next few weeks to purchase a large number of guns. He also reported that Patrick hid "stuff," meaning cocaine, in abandoned vehicles and buried drugs in the backyards of the two properties. During the week of January 11, 2008, the CI again contacted Patrick by cell phone. During their conversation, which Fox overheard, Patrick told the CI that he "was going to Georgia in the next couple days and that he would also have 'the other stuff' (meaning cocaine for sale)."
On January 15, 2008, the judge issued two "no-knock" warrants to search the MLK and Clearstream properties, including the residences, any vehicles, and all "outbuildings and curtilage located on the" premises.
The warrant for the Clearstream property was executed on January 22 at approximately 11:05 a.m. The officers seized drugs and other evidence from the residence. In an affidavit subsequently filed in support of additional search warrants, Fox detailed what occurred thereafter. Officers "cleared the residence . . . [and] a camper . . . located in the backyard," and, in doing so, entered the camper "searching . . . for any individual(s) . . . located inside[.]" Fox observed "numerous long firearms . . . in plain view in the bathroom shower area of the camper." Fox smelled burnt marijuana and noticed a registration for the camper on the counter in the name of Melvin L. Sharpe, of Manchester. Three other vehicles were parked in the backyard, and the narcotics K9 dog "gave a positive indication" on the rear trunk area of the cars. Fox requested a warrant to search the camper and two of the cars, and the judge issued the search warrant at 4:06 p.m. the same day. A search of the camper resulted in the seizure of various weapons and additional drugs.
After considering defendants' argument at a pre-trial hearing, Judge Wendell Daniels, who had not issued the search warrants, concluded that, considering the totality of circumstances, probable cause supported issuance of the warrant for the Clearstream property. The judge also rejected any argument that the search of the camper was illegal. He explained that the initial warrant specifically permitted the search of any vehicle on the property based upon the CI's information that Patrick "kept quantities of CDS . . . hidden in abandoned vehicles." The judge concluded the "information used in the" affidavit for the warrant for the camper "was obtained through an independent source, . . . the CI's statements."
It appears that the judge who issued the search warrants had retired.
Both defendants contend that the affidavit in support of the search warrant for the Clearstream property lacked sufficient probable cause. Robin also argues that the "initial warrantless police entry" of the camper was unlawful, and the second warrant was the fruit of that illegal conduct.
"It is well settled that a search executed pursuant to a warrant is presumed to be valid and . . . a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). "In considering such a challenge, [w]e accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant." Ibid. (internal quotation marks and citations omitted) (alteration in original). Any doubt as to the adequacy of the facts offered to show probable cause should be resolved by sustaining the search. Id. at 388-89.
Before issuing a search warrant, the judge "must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched." State v. Sullivan, 169 N.J. 204, 210 (2001). "Probable cause . . . is 'a "well grounded" suspicion that a crime has been or is being committed.'" Id. at 211 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). "When determining whether probable cause exists, courts consider the totality of the circumstances, and . . . deal with probabilities." Jones, supra, 179 N.J. at 389 (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)).
"Information related by informants may constitute a basis for probable cause, provided that a substantial basis for crediting that information is presented." Ibid. (citation omitted). "'Independent corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip' and is considered 'an essential part of the determination of probable cause.'" Id. at 390 (quoting State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)). Corroborating factors "may include controlled drug purchases performed on the basis of the informant's tip, [and] positive test results of narcotics obtained during a controlled purchase . . . ." Ibid.
Here, any claim that the warrant for the Clearstream property lacked probable cause is without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). The surveillances connected Patrick to the Clearstream property and the camper. The CI provided information that was independently corroborated by a controlled purchase, which occurred immediately after Patrick visited the Clearstream property and drove directly to the site of the sale. Based upon the totality of the circumstances, there was sufficient probable cause to believe that there was evidence of a crime at the Clearstream property.
Because the initial search warrant was valid and included the residence, outbuildings and all vehicles on the Clearstream property, Robin's argument that the search of the camper was "warrantless" has no merit. Fox's decision to obtain additional warrants evidences nothing other than an abundance of caution. We affirm the denial of the motion to suppress as to both defendants.
II.
We consider the evidence adduced at trial before the jury. Joseph Reiner managed the Clearstream property for JR Management. On February 4, 2007, Patrick signed a lease for the property in which he was listed as the sole tenant. Patrick arranged to meet Reiner every month at various locations and always paid the rent in cash. Reiner never went to the Clearstream property after Patrick executed the lease and did not know who lived there.
Robert Booth, an employee of Jersey Central Power and Light (JCP&L), testified that the electric utility service at the Clearstream property was put in Robin's name on November 15, 2007, with Patrick listed as the contact person. Booth stated that because Robin "had an account before with us, all she had to do was provide her Social Security number and the account was put into her name." He also admitted it was possible for someone who had that information to call and open the account in Robin's name.
Lakewood police officer Christopher Spagnuolo testified regarding the surveillances conducted at the Clearstream property between December 19, 2007, and January 3, 2008. His testimony essentially provided greater detail to the surveillance information contained in Fox's affidavit for the search warrant, which we set forth above. Although Patrick was observed at the Clearstream property on three of the six days of surveillance, Robin was never seen at the property.
We note that Fox's affidavit stated the surveillance began on December 21, not December 19.
Before the jury, Fox testified that on the morning of January 22, 2008, he was conducting surveillance at the MLK property, which he identified as Patrick's and Robin's residence, when he received information that Patrick was there. Members of the Lakewood police department responded and detained Patrick in the backyard, where Fox searched him and found $1350. Fox then went to the Clearstream property to assist other officers in the search.
Fox searched a kitchen cabinet and found, among the cans of food and other supplies, a white cloth bag containing a .32-caliber revolver loaded with six rounds, a box of ammunition, and cocaine. In the cabinet, he also found a black plastic bag containing a small digital scale, packaging material, small scissors, and a small bottle of inositol, which Fox described as a "cutting agent" used to increase the amount of cocaine. Fox acknowledged on cross-examination that none of the vehicles nor the camper found on the Clearstream property were registered to Robin.
Detectives Brianne Brescia, Michael Pluta, Daniel Roske, and Kenneth Hess also searched the house. Brescia could smell marijuana when she opened the well-stocked refrigerator. In the "crisper," Brescia found a blue bag from a women's clothing store, "Charlotte Russe," that held two Ziploc bags containing smaller bags of marijuana. Pluta searched a "second" cluttered bedroom, where he found male clothing, Patrick's birth certificate, mail in Patrick's name, shotgun shells and a spiral notebook with Patrick's name written on it.
Roske searched the master bedroom and found women's clothing and shoes in the closet. The bed was made, with linens and a comforter. There was an air conditioner by the bed. By a nightstand, upon which was a pink lamp, Roske found a purse and a paycheck in Robin's name, dated January 4, 2008. He also found a bank statement, other mail and a phone bill, all in Robin's name. The paycheck and one piece of mail were addressed to the MLK property. The phone bill and another piece of mail were addressed to Robin at an apartment in Asbury Park. One letter to Robin was postmarked December 20, 2007, another January 12, 2008. In the bedroom closet, Roske also found an air rifle and ammunition on a shelf next to a pair of men's jeans.
Hess recovered a knife inside a box in a kitchen cabinet. In the cluttered bedroom, he found plastic baggies, four bottles of inositol powder, and, in a cosmetic bag, ".22 long rifle bullets" and more baggies. Hess also found another digital scale as well as a motor vehicle registration and storage facility receipt, both in Patrick's name.
Fox went inside the unlocked camper and found a New Jersey registration belonging to Sharpe. Fox assisted in the search of two other vehicles on the property. Inside the trunk of an old Chevy Impala, Fox found two registrations in Patrick's name for an older model Pontiac. Inside the trunk of a 1989 Chevrolet Caprice that was also on the property, Fox found two bulletproof vests.
The camper was searched by Sergeant John Adams of the Ocean County Sheriff's Department. Under a bench in the kitchen area, he found: a camera bag containing crack and powder cocaine, along with two loaded handguns; a military bag containing marijuana; and a duffel bag containing an "ammo can" with assorted loose ammunition and magazines, two boxes of other ammunition, an M14 assault rifle clip, a .22-caliber revolver, a starter or blank gun, and a pellet gun that was a replica of a "P229 Sig Sauer handgun." Adams also found in the shower shotguns and a .22-caliber rifle with a scope.
William Pozalante of the Sheriff's Department, who was a member of the Criminal Investigations Unit that processed the crime scene at the Clearstream property on January 22, 2008, testified that a total of ten weapons were removed. No fingerprints were found on any of them.
While Fox and others were searching the Clearstream property, Van de Zilver, Detective Luigi Violante, and Sergeant Christopher Diaz of the SOG were searching the MLK property. In the back bedroom, Van de Zilver found: a yellow legal pad with some notations listing weights and money owed or exchanged; a box of business cards that read: "P.M. Enterprises. If you need it, I got it. Patrick Muldrow, President," and included the address of the MLK property; a storage facility receipt with Patrick's name on it; and registration receipts for eleven vehicles in Patrick's name and one in Robin's name. One of the vehicles was now registered to a Deborah Wells at the same Asbury Park address that was on the mail found in Robin's name in the Clearstream property's bedroom. He also found a coat in the hall closet containing $4000 and a receipt with Patrick's name on it. Violante recovered various receipts and papers in Patrick's name, along with a postal scale in the bedroom closet. No drugs were found at the MLK property.
Two experts from the Ocean County Sheriff's Department testified. Shantilal Patel, an expert in the field of forensic chemistry, testified that 518 grams of crack and powder cocaine, and 1516 grams of marijuana were recovered from the camper on the Clearstream property; an additional 62 grams of cocaine and 160 grams of marijuana was recovered inside the residence. Daniel Barrett, an expert in firearms, testified that he examined the ten weapons seized and all but one were operational.
Sergeant Todd Friedman of the SOG testified as an expert in narcotics investigations. Friedman concluded that the cocaine and marijuana found at the Clearstream property were possessed with the intent to distribute, and he opined as to the street value of the drugs. Friedman also explained that people who distribute narcotics commonly use multiple vehicles and a "stash house," instead of their own residence, to hide their drugs and thwart law enforcement.
Sharpe, who worked for JCP&L, testified that he first met Patrick through a mentoring program when Patrick was quite young and considered him "like a son or a brother." In the summer of 2007, Patrick told Sharpe that he had acquired the Clearstream property, and, when Sharpe mentioned that he needed to park his camper somewhere while he did home renovations, Patrick offered the property.
Patrick transported the camper to the Clearstream property. Sharpe testified that he lost the key to the camper ten years earlier so it was always unlocked. When Patrick took the camper, only a spare tire and some bottles of anti-freeze were inside, and Sharpe denied keeping any guns or drugs in the camper. On cross-examination, Sharpe acknowledged that he did not know who lived at the Clearstream property, who visited Patrick there or who had access to his camper. He also acknowledged that he learned about the investigation from his nephew, who was a Lakewood police officer, and that his nephew drove him to police headquarters where Sharpe gave a taped statement.
At the end of the State's case, defendants moved for a judgment of acquittal pursuant to Rule 3:18-1. The trial judge, who was not Judge Daniels, denied the motions. Defendants did not call any witnesses.
The jury found Patrick guilty on all thirteen counts. Robin was found guilty on counts one through four, which charged her with various CDS offenses, and counts five, six and seven, which charged her with possession of various weapons, specifically those found in the house, while engaged in drug activities, N.J.S.A. 2C:39-4.1a. However, the jury acquitted Robin of counts eight through thirteen, all of which charged her with possession of firearms recovered in the camper.
After the verdicts, defendants were tried together on the remaining counts of the indictment charging them with violations of N.J.S.A. 2C:39-7, possession of weapons by certain persons. The jury found Patrick guilty on counts fourteen through twenty-two, i.e., the knife and all the firearms found at the Clearstream property. It found Robin guilty on counts twenty-three through twenty-five, involving the weapons found in the residence and not guilty on counts twenty-six through thirty-one involving the weapons found in the camper. The judge denied both defendants' motions for judgments not withstanding the verdict (JNOV).
III.
We consider the substantive points raised by Patrick, including those asserted in his pro se brief. We then address the sentencing issues.
A.
To place Patrick's claims in the proper context, we provide some additional procedural history, noting first that defendant remained in custody, having not made bail, and apparently was present in a jail detention area in the courthouse building.
At a pretrial conference on June 26, 2009, the trial judge issued Hudson warnings, advising both defendants of the trial date and that the case would proceed in their absence. During the course of the hearing, Patrick told the judge that he wanted "to go pro se" because of complaints regarding defense counsel's performance. The judge gave Patrick until September 1 to submit a written request to proceed pro se.
State v. Hudson, 119 N.J. 165, 182 (1990).
The court received Patrick's pro se motion for "counsel withdrawal and reassignment" dated August 31, 2009. In the accompanying memorandum, Patrick did not ask to represent himself but, rather, sought the assignment of another lawyer. In a letter dated October 1, 2009, the judge advised Patrick that his complaints and request to have another "pool attorney" assigned had to be addressed to the Office of the Public Defender.
At a pretrial conference on January 12, 2010, the judge again reviewed his reasons for denying Patrick's motion. Patrick voiced myriad complaints about defense counsel, including that he had not seen his attorney in months. Defense counsel denied the claim by reading into the record relevant timesheets documenting his meetings with Patrick.
Patrick also indicated that his attorney was afraid of him. In response, the judge asked the prosecutor to place on the record several comments, which might be inferred as threats, Patrick had made in court, apparently outside the judge's presence and off the record. The judge also noted that Patrick sent a letter, dated January 7, 2010, again expressing dissatisfaction with his attorney and requesting other counsel.
Patrick's obstreperous behavior continued the next day, during which he complained about counsel's refusal to argue a motion he submitted. The judge reminded Patrick that counsel would continue to represent him, and he would be guided by counsel's decisions. The following occurred:
Patrick: Well, Your Honor, then I can leave now and you can finish the trial without me. My attorney tells me he is going to put a defense in and I have no say in it? . . . You telling me that I have no right to pick my defense?Patrick then accused defense counsel of "feel[ing] threatened." Defense counsel responded, "[F]or the record, I don't feel threatened by [defendant]." Patrick continued:
. . . .
Therefore, as soon as we leave here, I am letting you know and this is on the record, I am not coming down here no more.
Like I said before, and I put it on the record yesterday, I am putting in for appeal to have the notice that I am appealing this. I am not coming down here no more.
I am not coming back down here tomorrow, so don't even call for me and that is on the record. I refuse trial because I am not getting a fair trial so have it without me.
On January 26, the judge asked defense counsel if he wished to place something on the record. Defense counsel stated, "I visited my client . . . this morning. I advised him that he had a right to be here at trial, that he could be here at trial at any time and he declined to come to trial." The judge asked, "So he's refusing to come down for trial?" Defense counsel responded, "Yes . . . ."
We have not been provided with any transcripts for dates between January 13 and 26, yet it is apparent there were proceedings in the interim because the January 26 transcript reflects that the jury had been selected and was empanelled. We do not know if defendant was present in court during jury selection.
On February 4, the next date for which we have been supplied transcript, defense counsel advised the judge that he "went up to see [his] client, [and] he refused to come down." The judge then noted that he confirmed this by speaking to a sheriff's officer who "firsthand informed me that [Patrick] told her that he did not want to come down."
The trial commenced, and, during his preliminary instructions, the judge told the jury:
I will remind you again, as you are aware, that the defendant . . . is absent from this trial. You should not speculate about the reason for his absence. You are not to consider for any purpose or in any manner at arriving at your verdict the fact that Patrick . . . is not present at trial. The defendant is entitled to have the jury consider all evidence presented at trial, the defendant is presumed innocent even if he is not present at trial.
On the next trial day, February 9, the judge began by stating outside the jury's presence: "I just want to confirm that I spoke to Officer Levers upstairs at the Ocean County Jail, he's in the tower, he confirmed that . . . Patrick . . . this morning told him . . . he is refusing to come down to court." On the next trial day, February 16, defense counsel again confirmed that Patrick was "refusing to come down this morning," and the judge noted he independently confirmed that by contacting one of the sheriff's officers at the jail. During his final jury charge, delivered on February 17, the judge again admonished the jury not to consider Patrick's absence during trial.
B.
Before us, Patrick contends the judge erred by not conducting a hearing on his request to proceed pro se. We disagree.
In his pro se brief, Patrick makes a similar point, contending that he should have been permitted to represent himself because his trial counsel "was afraid of . . . and was threatened by him." Our discussion encompasses consideration of that separate, but related, argument.
A "[d]efendant possesses both the right to counsel and the right to proceed to trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007). In State v. Crisafi, 128 N.J. 499, 509 (1992), the Court explained that a defendant may "exercise the right to self-representation only by first knowingly and intelligently waiving the right to counsel." "The need for an unequivocal request for self-representation by a defendant is a necessary prerequisite to the determination that the defendant is making a knowing and intelligent waiver of the right to counsel." State v. Figueroa, 186 N.J. 589, 593 n.1 (2006) (emphasis added).
"Of course, there is a difference, constitution-wise, between the right of self-representation and the right of a defendant to secure counsel of his own choice." State v. Harris, 384 N.J. Super. 29, 59 (App. Div.), certif. denied, 188 N.J. 357 (2006). "The latter is not absolute and cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice and deprive such courts of the exercise of their inherent powers to control the same." Ibid. See also State v. Coon, 314 N.J. Super. 426, 438 (App. Div.), certif. denied, 157 N.J. 543 (1998) ("The right to assigned counsel is not the right to pick an attorney of one's own choosing, nor the right to select counsel who will completely satisfy a defendant's fancy as to how he is to be represented.").
Here, there was no violation of defendant's right to self-representation. Although he made a request to proceed pro se at the June 2009 conference, Patrick's follow-up motion sought only dismissal of his public defender and appointment of new counsel. He never again made a request to represent himself at any other proceeding. In the absence of an unequivocal request, the judge did not err by failing to hold a hearing on the issue.
Patrick also contends for the first time on appeal that the judge erred in trying him in absentia based upon representations by third parties that he did not wish to attend trial. This argument is procedurally barred because Rule 3:20-2 requires "[a] motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing." No such motion was made. "[T]he failure to make the appropriate motion before the trial court constitutes a second waiver pursuant to Rule 3:16(b)." State v. Finklea, 147 N.J. 211, 221 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (2007).
The argument is also unpersuasive on its merits. It is axiomatic that criminal defendants have a constitutional right to confront witnesses against them, see U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10, and "[e]ssential to that guarantee is the right of the accused to be present in the courtroom at every stage of the trial." State v. Luna, 193 N.J. 202, 209 (2007). The right to be present at trial, however, is not absolute, id. at 210, and a defendant may waive his right to be present. Hudson, supra, 119 N.J. at 182.
Rule 3:16(b) provides in relevant part:
Nothing in this Rule . . . shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.After a defendant has received actual notice of a scheduled trial date, absent a showing of justification, nonappearance is deemed a waiver of the right to be present at trial. Finklea, supra, 147 N.J. at 213, 218-22.
Patrick repeatedly told the judge he did not wish to attend trial, i.e., he made an express oral waiver of his right to be present. Thereafter, the judge confirmed with members of the sheriff's staff and defense counsel that defendant's wish continued. There is nothing in the record supporting a contrary conclusion. Certainly, defendant was free to revoke his waiver, but never did. See Luna, supra, 193 N.J. at 211 ("A defendant can always reclaim the right to be present by appearing in court on the rescheduled date."). Indeed, defendant's failure to file a motion under Rule 3:20-2 implies his express waiver continued.
In his pro se brief, Patrick contends that Judge Daniels erred by failing to recuse himself from pretrial proceedings. Although no motion was ever made, at the June 2009 conference before the trial judge, Patrick claimed Judge Daniels had recused himself because of a conflict of interest. Patrick stated that Judge Daniels was the assistant prosecutor who handled a prior criminal case against him, and the judge lived in close proximity to the Clearstream property, something Patrick advised the judge of in a letter. There is nothing in the record to confirm either assertion, and none of the trial attorneys or the judge confirmed Judge Daniels had actually recused himself after ruling on the suppression motions.
In State v. Tucker, 264 N.J. Super. 549, 553-55 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994), we held that recusal was mandatory where the trial judge, while an assistant prosecutor, had presented two cases involving the defendant to a grand jury. However, in State v. McNamara, 212 N.J. Super. 102, 109 (App. Div. 1986), certif. denied, 108 N.J. 210 (1987), we held that reversal of the defendant's conviction was not required where the trial judge, the First Assistant Prosecutor of the county at the time the defendant's indictment was returned, had not personally prosecuted the defendant.
The merits of the issue Patrick has belatedly raised cannot be determined on this record, and we therefore conclude it is more appropriately addressed in a petition for post-conviction relief. In that framework, defendant is free to raise the claim and supply additional documentation supporting same. We affirm Patrick's convictions.
C.
Patrick contends the sentence imposed was excessive because it exceeded the minimum extended term of twenty years and included the maximum permissible period of parole ineligibility, i.e., twenty years. We find no reason to disturb the sentence.
Prior to sentencing, the judge granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f based on Patrick's prior drug conviction in New York. The judge found aggravating factors three, "[t]he risk that the defendant will commit another offense," six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1a(3), (6) and (9). The judge also found mitigating factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents," noting defendant was obligated to make support payments to two children. N.J.S.A. 2C:44-1b(11). The judge imposed an extended term of thirty-years' imprisonment with a fifteen-year period of parole ineligibility on the first-degree charge of possession with intent to distribute more that five ounces of cocaine. He ran all other sentences concurrent to that.
The judge imposed a consecutive sentence on the certain persons offenses, but Patrick makes no argument regarding that portion of the aggregate sentence.
--------
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).
Finding Patrick eligible for an extended term under N.J.S.A. 2C:43-6f, which defendant does not contest, the judge could have imposed a sentence ranging from twenty years to life. N.J.S.A. 2C:43-7a(2). Pursuant to N.J.S.A. 2C:43-6f, the court must impose a sentence which includes a minimum term "fixed at, or between, one-third and one-half of the sentence imposed." In determining parole ineligibility, the court balances the same aggravating and mitigating factors used to determine the length of a sentence, but must be "'clearly convinced that the aggravating factors substantially outweigh the mitigating' factors." State v. Abdullah, 184 N.J. 497, 509 (2005) (quoting N.J.S.A. 2C:43-6(b)).
Here, the aggravating and mitigating factors were supported by the record. The judge expressly concluded he was clearly convinced that the aggravating factors substantially outweighed the mitigating factors. In sum, the sentence does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
We affirm Patrick's sentence.
IV.
A.
Robin contends that the judge erred in denying her motion for acquittal, first made after the State rested and asserted again immediately after the verdict. Whether made before the verdict, Rule 3:18-1, or after, Rule 3:18-2, the standard for deciding a motion for acquittal is the same. State v. Speth, 323 N.J. Super. 67, 81 (App. Div. 1999). We conduct our review de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Robin argues that the evidence was sufficient only to prove that she was "at the residence" on the Clearstream property, but insufficient to prove beyond a reasonable doubt that she possessed either the drugs or weapons found there. We disagree.
An object may be actually or constructively possessed. State v. Spivey, 179 N.J. 229, 236 (2004). A person actually possesses an object when he or she has manual or physical control of it. Ibid. "A person constructively possesses an object when, although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." Id. at 236-37 (quoting State v. Schmidt, 110 N.J. 258, 270 (1988)). Actual or constructive possession can be jointly shared by several persons with equal criminal responsibility. State v. Morrison, 188 N.J. 2, 14 (2006).
The jury surely could infer Robin's presence at the Clearstream property, and, although not present during the surveillance or at the time of the warrant's execution, the mail found demonstrates the likelihood she was there in the months of December and January, not some remote time in the past. In State v. Brown, 80 N.J. 587 (1979), the Court considered some of the totality of factors permitting a jury to infer constructive possession of drugs in an apartment.
One such factor, although not dispositive, was the defendant's presence at the apartment. See id. at 594 ("In the context of the evidence, as presented, one can readily draw the inference that the occupant of such premises would have knowledge and control of its contents."). The Brown court cited other factors upon which a permissible inference that the defendant constructively possessed the drugs could rest, including "the presence of other heroin-related materials in the apartment" and that the drugs were "found in rooms commonly lived in or used by an occupant . . . ." Id. at 595-96.
In this case, marijuana was found in the refrigerator inside a bag from a women's clothing shop. Cocaine and a gun were found in a kitchen cabinet that was stocked with foodstuffs. There was paraphernalia including scales and cutting agents in open view. An air gun and ammunition were found in a bedroom that bore indicia of Robin's personal use. Although the surveillance never placed Robin in the camper, the testimony was undisputed that the camper was open and could not be locked. Based upon the totality of the evidence, we conclude a jury could find beyond a reasonable doubt that Robin possessed the drugs and guns jointly and constructively with Patrick.
Robin also argues for the first time on appeal that the State's failure to charge Sharpe with any crime created an appearance of impropriety requiring her conviction be reversed. The argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
B.
We next consider Robin's arguments alleging errors in the conduct of the trial and the judge's jury charge. They are all raised for the first time on appeal, necessitating application of the plain error standard. See R. 2:10-2 ("Any error or omission 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 . . . .").
(i)
Robin contends the judge erred by allowing Fox to testify that he went to the MLK property to conduct surveillance and Violante to provide an opinion about the postal scale he found there. She also contends the prosecutor's summation comments amounted to reversible error. We disagree.
On direct examination, the prosecutor asked Fox where he was around 10:00 a.m. on January 22, 2008. Fox replied: "I was conducting surveillance on . . . Martin Luther King Drive in Lakewood." There was no further reference to surveillance of the MLK property and, as noted, no objection. Violante, who was not qualified as an expert witness, testified that he recovered a postal scale but no mail to be weighed at the MLK property. The prosecutor then asked: "Based on your training and experience, what would that scale be used for?" Violante replied: "Weighing out CDS."
Even if these statements were improper -- Violante's was not permissible lay opinion, see State v. McLean, 205 N.J. 438, 459 (2011) (holding that a lay witness may not offer opinion on a matter "not within [the witness's] direct ken . . . and as to which the jury is as competent as he to form a conclusion[.]") (quotation marks and citation omitted) -- they were fleeting in nature and did not, either singularly or collectively, bring about an unjust result.
We do not think the prosecutor's summation comment was improper at all. Talking about Patrick, he said:
What if the police are watching, which they were, what if, more importantly, a rival is watching, somebody wants to rip you off . . . . You don't want somebody stealing it from you, so you're going to hide it. You're going to hide it someplace where you don't think anybody will be able to find it and you're going to protect it, and you're going to protect it because you're going to arm yourself and you're going to have somebody at the house at all times like Robin Muldrow living there.Robin claims this comment misstated the evidence which showed, instead, that she lived at the MLK property and was never at the Clearstream property.
[(Emphasis added).]
Prosecutors are afforded considerable leeway in delivering their summations, and are expected to make vigorous and forceful closing arguments to the jury. State v. Daniels, 182 N.J. 80, 96 (2004). When they limit their comments to the facts shown by or reasonably inferred from the evidence, there is no error. State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). As we already noted, there was sufficient evidence to permit the jury to infer that, even if Robin did not "live" at the Clearstream property, she spent sufficient time there so as to constructively possess the drugs and narcotics found. There was no error in the prosecutor's comments.
(ii)
Robin argues that the judge's final jury charge was fraught with errors. As explained by the Court:
In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."
[State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
Robin claims that the constructive possession charge failed to tell the jurors that to be guilty, she must have intended to have control over the items in question. This misrepresents the full charge given by the judge, which tracked the Model Jury Charge and provided:
Constructive possession means possession in which the person does not physically have the item on his or her person but is aware that the item is present and is able to
exercise intentional control or dominion over it. So someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of the item.
[(Emphasis added).]
Robin next claims the judge failed to properly instruct the jury that she could be found guilty of a lesser offense based on her own intent and participation in the crime. During deliberations, the jury asked: "Cocaine, can we charge Robin with [a] lesser amount than Patrick of possession with intent, does the law allow this?" The court reviewed its response with counsel, who had no objections, and told the jury: "[Y]ou may find that Robin Muldrow possessed a lesser amount of cocaine with intent to distribute than Patrick Muldrow if you find that as a matter of fact."
Robin acknowledges the court correctly instructed the jury that she could be convicted of possessing a lesser amount of cocaine and to consider her guilt separately. She claims, however, that the jury's question suggested they "still did not know" if she could be convicted of lesser offenses than those committed by Patrick and suggests the jury needed to be instructed on accomplice liability. These arguments lack sufficient merit to warrant any further discussion. R. 2:11- 3(e)(2). We only add that Robin's reliance upon our decision in State v. Bielkiewicz, 267 N.J. Super. 520, 524-25 (App. Div. 1993), is misplaced because she was not charged, nor was it the State's contention, that she was vicariously liable as Patrick's accomplice.
(iii)
Lastly, Robin argues that the court erred by failing to instruct the jury on the law of attempted distribution and to inform the jury that if it relied on an "attempt theory," it must find that she acted purposely. The court's instruction tracked Model Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance with Intent to Distribute" (2008), which defines "distribute" as "the transfer, actual, constructive or attempted, from one person to another of a controlled dangerous substance." The actual distribution need not take place because the State need only prove that it was a defendant's intent to do so, i.e., "a resolution to do a particular act or accomplish a certain thing." Ibid.
As the Court has said, "model jury charges should be followed and read in their entirety to the jury." State v. R.B., 183 N.J. 308, 325 (2005). "The process by which model jury charges are adopted in this State is comprehensive and thorough; our model jury charges are reviewed and refined by experienced jurists and lawyers." Ibid. A reading of the model jury charge is "a persuasive argument in favor of the charge as delivered." State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000).
The judge followed the model charge which, by defining "distribute," did not create some alternative theory of culpability. Robin was charged with a crime defined by possession with a specific intent, i.e., to distribute the drugs involved. The jury did not need to differentiate whether the distribution occurred or was attempted but failed.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION