reversing an order requiring disclosure where CI "lur[ed]" defendant to bring a gun out of his apartment but otherwise was "no more than a witness to the criminal event"
How later courts described this case
- reversing an order requiring disclosure where CI "lur[ed]" defendant to bring a gun out of his apartment but otherwise was "no more than a witness to the criminal event"
- requiring retrial where police, on uncorroborated information from CIs, organized a "reverse sting" and sold cocaine to the defendants
- stating that disclosure was not required although the CI's identity was "only thinly concealed"
- reversing conviction where police arrested defendant after receiving information from unsupervised CI who organized prescription drug sales
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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 binding only 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 NOS. A-0073-15T1
A-0633-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY EUGENE STEVENSON,
a/k/a ANTHONY E. DIXON,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEROY TAYLOR, a/k/a LEROY T. PRINCE
DEVINE,
Defendant-Appellant.
___________________________________
Submitted October 22, 2018 – Decided October 31, 2018
Before Judges Fasciale, Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 12-05-
0895.
Joseph E. Krakora, Public Defender, attorney for
appellant Anthony Eugene Stevenson (Michael J.
Confusione, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Leroy Taylor (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on the briefs).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Ian D. Brater,
Assistant Prosecutor, of counsel and on the briefs).
Appellant Anthony Eugene Stevenson filed a pro se
supplemental brief.
PER CURIAM
In these back-to-back appeals, which we have consolidated for purposes
of this opinion, Anthony Eugene Stevenson and Leroy Taylor (collectively
defendants) appeal from multiple convictions related to their illegal possession
and sale of narcotics and firearms. A grand jury indicted and charged them with
committing numerous offenses – more than 100 offenses in total. The State tried
defendants separately. We affirm as to Stevenson. As the State concedes,
however, the judge erroneously handled Taylor's request to proceed pro se. We
therefore reverse for a new trial as to Taylor. We will first address Stevenson's
contentions, then those raised by Taylor.
A-0073-15T1
2
I.
On appeal, Stevenson makes the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE OBTAINED FROM WIRETAPS.
POINT II
THE TRIAL COURT ERRED IN DENYING
DISCLOSURE OF THE CONFIDENTIAL
INFORMANTS.
POINT III
THE PROSECUTOR WENT BEYOND FAIR
COMMENT DURING SUMMATION, DEPRIVING
DEFENDANT OF A FAIR TRIAL BELOW.
POINT IV
THE TRIAL COURT INFRINGED DEFENDANT'S
RIGHT TO TESTIFY VIA THE COURT'S
ERRONEOUS SANDS/BRUNSON RULINGS AND
IN FAILING TO ENSURE THAT DEFENDANT WAS
AWARE THAT IT WAS HIS PERSONAL RIGHT TO
CHOOSE WHETHER OR NOT TO TESTIFY IN HIS
OWN DEFENSE BEFORE THE JURY BELOW.
POINT V
DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.
A-0073-15T1
3
In a pro se supplemental brief, Stevenson raises the following additional
argument:
POINT I
THE TRIAL COURT ERRED WHEN IT DID NOT
ACQUIT DEFENDANT OF THE GUN CHARGES
BASED ON DUE PROCESS ENTRAPMENT.
Stevenson argues that the court erred by denying his motion to suppress
evidence gathered by police pursuant to a wiretap warrant. He asserts that
Detective Christopher Camilleri submitted an affidavit containing "false
statements." He contends the State failed to show probable cause, and that the
request for a wiretap warrant was unnecessary.
An appellate court reviewing an order denying a motion to suppress must
uphold the factual findings underlying the trial judge's decision so long as they
are supported by sufficient credible evidence in the record. State v. Elders, 192
N.J. 224, 243 (2007). A trial judge's findings of fact should not be disturbed
unless they are "so clearly mistaken" that the interests of justice demand their
correction. Id. at 244. We review a trial judge's interpretation of the law de
novo. State v. Gamble, 218 N.J. 412, 425 (2014).
N.J.S.A. 2A:156A-10 governs the grounds necessary for the issuance of a
wiretap warrant. Based on the facts submitted by the applicant, that judge must
conclude that probable cause exists or existed to believe that:
A-0073-15T1
4
a. The person whose communication is to be intercepted
is engaging or was engaged over a period of time as a
part of a continuing criminal activity or is committing,
has or had committed or is about to commit an offense
as provided in section 8 of P.L.1968, c.409 (C.
2A:156A-8);
b. Particular communications concerning such offense
may be obtained through such interception;
c. Normal investigative procedures with respect to such
offense have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too
dangerous to employ;
d. Except in the case of an application meeting the
requirements of subsection g. of section 9 of P.L.1968,
c.409 (C. 2A:156A-9), the facilities from which, or the
place where, the wire, electronic or oral
communications are to be intercepted, are or have been
used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in
the name of, or commonly used by, such individual;
e. The investigative or law enforcement officers or
agency to be authorized to intercept the wire, electronic
or oral communication are qualified by training and
experience to execute the interception sought; and
f. In the case of an application, other than a renewal or
extension, for an order to intercept a communication of
a person or on a facility which was the subject of a
previous order authorizing interception, the application
is based upon new evidence or information different
from and in addition to the evidence or information
offered to support the prior order, regardless of whether
such evidence was derived from prior interceptions or
from other sources.
A-0073-15T1
5
[Ibid.]
If there is no corroborative evidence offered, "the judge shall inquire in camera
as to the identity of any informants or any other additional information . . . which
the judge finds relevant . . . to determine if there is probable cause . . . ." Ibid.
An application for a wiretap warrant must contain a "particular statement
of the facts relied upon by the applicant" including information about the person
whose communications will be intercepted; the particular offenses being
committed; the type of communications to be intercepted; the nature and
location of the targeted facilities; the period of time for which the warrant is
sought; and "[a] particular statement of facts showing that other normal
investigative procedures with respect to the offense have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or to be too
dangerous to employ." N.J.S.A. 2A:156A-9. The New Jersey statutes on
wiretap warrants mirror the federal statute, 18 U.S.C.S. § 2518(1), (3). As a
result, we give "careful consideration" to federal decisions on this subject. State
v. Ates, 217 N.J. 253, 269 (2014).
In his wiretap affidavit, Camilleri gave a detailed description of the
investigation as of May 25, 2011. He provided information given by
confidential informants (CIs) about Stevenson's distribution of "large quantities
A-0073-15T1
6
of heroin in the Long Branch/Red Bank area"; Detective Michael Deaney's
undercover purchases of several bricks of heroin from Stevenson from March
through May 2011 and Deaney's phone calls arranging those purchases; calls
between Deaney and Stevenson about the purchase of a handgun and the
recording of the meeting at which Deaney bought a gun from Amos Castro in
Stevenson's presence; and a conversation between Deaney and Stevenson about
the possibility of buying another gun from "a friend" of Stevenson.
Camilleri asserted that based on the foregoing, he had probable cause to
believe that Stevenson and "other as yet unidentified individuals" were utilizing
the specified phone numbers to further a "large scale" and "ongoing organized
criminal enterprise" involving "narcotics distribution and illicit handgun sales ."
He noted that the investigation had already revealed information about
Stevenson's activities, but stated that "the identity of most of his co-conspirators
remain[ed] unknown" and would be difficult to discover due to conspirators' use
of prepaid wireless phones and false subscriber information. Camilleri believed
that the criminal activity at issue was "far more extensive than what [the]
investigation [had] yet identified" and that a wiretap would lead to the discovery
of further evidence that Stevenson and his associates were engaged in "schemes"
A-0073-15T1
7
to distribute and dispense controlled dangerous substances (CDS), and to
transport illegal handguns into New Jersey to sell them.
Camilleri next explained the need for wiretapping, discussing why other
investigatory methods had not been entirely successful or would not likely
succeed in uncovering the full extent of the conspiracy. He stated that the
investigation had yet to identify Stevenson's heroin suppliers or locations where
he and his associates stored heroin. The CIs were unable to provide identities
of, or any other information about, Stevenson's possible co-conspirators, and
had expressed unwillingness to testify against Stevenson. Deaney's undercover
activities were limited to purchases of heroin from Stevenson and a gun from
one co-conspirator. Camilleri opined that physical surveillance would be
unhelpful since Stevenson likely acted in private locations, and that the
execution of search warrants was impossible because police did not yet know
what locations to search. Additionally, Camilleri stated that such searches,
and/or grand jury subpoenas, would compromise the covert nature of the
investigation and could cause conspirators to temporarily suspend their
activities to avoid detection. Finally, analysis of call detail records and other
technical phone data would only reveal what phone numbers were used to call
Stevenson's identified numbers, but not the contents of the communications.
A-0073-15T1
8
Stevenson argues that Camilleri's statements in the warrant affidavit – that
Stevenson was involved in transporting illegal firearms into New Jersey – were
false because they were based solely on the fact that Castro sold a gun to Deaney
after Stevenson introduced the two. He also contends that Camilleri's statements
that Stevenson was part of a "criminal enterprise" were false. Stevenson asserts
that he made a sufficient showing that the warrant request contained such false
statements, and that therefore the court erred by not holding an evidentiary
hearing under Franks v. Delaware, 438 U.S. 154 (1978), and by denying his
motion to suppress.
New Jersey has adopted the Franks standard for evaluating challenges to
the veracity of a warrant application. State v. Howery, 80 N.J. 563, 567-68
(1979). Under Franks, 438 U.S. at 171, a court must hold an evidentiary hearing
to address a challenge only if there are "allegations of deliberate falsehood or of
reckless disregard for the truth, and those allegations [are] . . . accompanied by
an offer of proof." "Allegations of negligence or innocent mistake are
insufficient" to require a hearing. Ibid. A "defendant must make a substantial
preliminary showing that the affiant, either deliberately or with reckless
disregard of the truth, failed to apprise the issuing judge of material information
which, had it been included in the affidavit, would have militated against
A-0073-15T1
9
issuance of the search warrant." State v. Dispoto, 383 N.J. Super. 205, 216
(App. Div. 2006) (citation omitted). Further, even if that standard is met, if
there remains sufficient content in the application to support a finding of
probable cause when the allegedly false material is set aside, a hearing is not
required. Franks, 438 U.S. at 171-72.
If a hearing is held and 1) the allegation of falsity or reckless disregard is
established by a preponderance of the evidence and 2) without the false material
the affidavit is insufficient to establish probable cause, then the warrant resulting
from that application must be annulled and all evidence collected pursuant to
the warrant must be suppressed. United States v. Gotti, 771 F. Supp. 535, 538
(E.D.N.Y. 1991).
To determine whether a deliberate falsehood or reckless disregard for the
truth was perpetrated by the warrant applicant, the test is whether the affiant
deliberately lied, "entertained serious doubts" as to the truth of his or her
statements in the application, or "had obvious reasons to doubt the accuracy" of
the information reported therein. United States v. Clapp, 46 F.3d 795, 801 n.6
(8th Cir. 1995). "Franks does not require that all statements in an affidavit be
true; it simply requires that the statements be 'believed or appropriately accepted
by the affiant as true.'" United States v. Campino, 890 F.2d 588, 592 (2d Cir.
A-0073-15T1
10
1989) (quoting Franks, 438 U.S. at 165). Moreover, a challenger's attack on a
statement in an application "must be more than conclusory and must be
supported by more than a mere desire to cross-examine." United States v.
Jimenez, 824 F. Supp. 351, 361 (S.D.N.Y. 1993).
Importantly, the Franks analysis applies only to allegations of deliberate
falsification or reckless disregard for the truth of facts, and not to the affiant's
conclusions based on those facts. United States v. Armocida, 515 F.2d 29, 41
(3d Cir. 1975) (explaining that there is no need for a Franks hearing where
defendant challenged only affiant's conclusion, based on available information,
that he was most likely in contact with a heroin supplier). A defendant's
disagreement with the affiant's interpretation of "facts fairly stated" does not
satisfy the Franks standard. Jimenez, 824 F. Supp. at 361 (indicating that no
hearing is necessary based upon "[a] defendant's submission of his own counter-
interpretation" of facts leading to affiant's conclusion that drugs and money were
moved into and out of a location); Gotti, 771 F. Supp. at 539 (stating that no
hearing is necessary where defendants' only challenge was a disagreement with
affiant "on the interpretation of what was overheard on" certain tapes).
Here, the judge found that Stevenson did not satisfy the requirements for
a Franks hearing, because he did not demonstrate that Camilleri's application
A-0073-15T1
11
contained knowingly or recklessly made false statements. As to the statements
concerning Stevenson's participation in firearms trafficking, the judge found that
Camilleri demonstrated Stevenson's involvement by stating that he was present
during Deaney's handgun purchase from Castro and later told Deaney that a
"friend" of his could obtain more guns. In regard to Camilleri's use of the phrase
"criminal enterprise" in the affidavit, the judge found that the term was a
"conclusion[] drawn from facts fairly stated." The judge found that the warrant
was based upon probable cause and that the wiretap evidence need not be
suppressed.
We conclude that Stevenson did not satisfy the Franks standard. Indeed,
his motion did not challenge any "facts fairly stated" in Camilleri's warrant
application, but instead challenged only Camilleri's conclusions based on those
facts. That Stevenson disagreed with Camilleri's use of the term "criminal
enterprise" and interpretation of the facts surrounding Castro's gun sale does not
require a hearing under Franks. Further, Stevenson did not offer any proof that
Camilleri deliberately falsified statements in the application or had reason to
doubt the veracity of those statements, beyond his own counter-interpretation of
events. Finally, even without the phrase "criminal enterprise" and the statements
concerning the weapons trafficking offense, there was sufficient evidence in the
A-0073-15T1
12
application to support a finding of probable cause to believe that Stevenson was
engaged in criminal activity justifying a wiretap warrant under N.J.S.A.
2A:156A-10. As a result, a Franks hearing was unnecessary, and the trial court
did not err in denying the motion to suppress on probable cause grounds.
Stevenson also argues that the court erred in finding that the warrant
request established that normal investigative procedures were tried and failed
before a wiretap warrant was sought. Specifically, he contends that the several
less invasive investigative methods used by police prior to the warrant request
were successful in uncovering sufficient evidence to prosecute him for drug
offenses, so therefore the wiretap was unnecessary. 1
A challenge to a wiretap warrant's necessity is reviewed for abuse of
discretion, United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007), giving
substantial deference to the warrant-issuing court's determination. United States
v. Gray, 410 F.3d 338, 342 (7th Cir. 2005). To obtain a wiretap warrant, the
government must demonstrate that it has made a reasonable, good faith effort to
use "normal" investigative procedures before resorting to the "intrusive" method
of intercepting communications. Ates, 217 N.J. at 267; United States v.
1
Stevenson's brief states that police failed to "minimize[] intercepted
communications." But his arguments only concern the necessity requirement.
A-0073-15T1
13
Cartagena, 593 F.3d 104, 109 (1st Cir. 2010). However, investigating officers
need not use a wiretap warrant as a "last resort," and the mere fact that another
technique was available or possible does not render a wiretap unnecessary.
United States v. Macklin, 902 F.2d 1320, 1327 (8th Cir. 1990). The government
is not "forced to run outlandish risks or to exhaust every conceivable alternative
before requesting authorization for electronic surveillance." United States v.
Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989).
Instead, the warrant application must only show why other measures are
inadequate for the particular investigation, United States v. Perez, 661 F.3d 568,
581 (11th Cir. 2011), including why their success "appears unlikely or too
dangerous." United States v. Campos, 541 F.3d 735, 746 (7th Cir. 2008). "The
government's burden of proving necessity 'is not great' and its compliance with
the necessity requirement is 'reviewed in a practical and common-sense
fashion.'" Ibid. (quoting United States v. McLee, 436 F.3d 751, 763 (7th Cir.
2006)). Nevertheless, mere boilerplate language regarding the difficulty of
gathering evidence is insufficient; the government must base its need on facts
specific to the case at hand. Id. at 749.
Even where traditional investigative methods have achieved "partial
success," this "does not necessarily render electronic surveillance unnecessary."
A-0073-15T1
14
Perez, 661 F.3d at 581. For example, the government may demonstrate the
necessity of a wiretap by showing that its "ability to continue obtaining
actionable intelligence from such methods [is] limited," Cartagena, 593 F.3d at
110, or that the "most valuable evidence" is likely to be direct evidence of illicit
transactions taking place via phone. United States v. McGuire, 307 F.3d 1192,
1197 (9th Cir. 2002). Other justifications include: 1) the possibility that
traditional surveillance would cause perpetrators to flee the jurisdiction, suspend
criminal activities, or give false information; 2) an inability to identify locations
where a perpetrator or organization stores contraband, rendering search warrants
ineffective; 3) the impossibility of infiltration by CIs or agents due to the close
and secretive nature of a group; 4) CIs' refusal to continue cooperating or
inability to do so; 5) the use of counter-surveillance methods by perpetrators; 6)
the undesirability of granting immunity to most culpable conspiracy members if
subpoenas are used; and 7) the inability of pen registers and other phone records
to disclose the details of conversations. Campos, 541 F.3d at 747-48; United
States v. Carter, 449 F.3d 1287, 1294 (D.C. Cir. 2006); United States v. Bennett,
219 F.3d 1117, 1122 (9th Cir. 2000); United States v. Brone, 792 F.2d 1504,
1506 (9th Cir. 1986).
A-0073-15T1
15
Even if law enforcement has already gathered sufficient evidence to indict
one perpetrator through other means, the necessity requirement may be fulfilled
where the application demonstrates that the government has "limited knowledge
of the full extent of [that perpetrator's] criminal activities and his
coconspirators" and can gain more evidence by intercepting communications.
Perez, 661 F.3d at 582. This is because "the government has a duty to extirpate
conspiracy beyond its duty to prevent the mere commission of specific
substantive offenses." McGuire, 307 F.3d at 1198 (footnote omitted).
Here, the judge concluded that Camilleri's affidavit "presented an
adequate basis to establish that normal investigative techniques had been
inadequate to identify many of the co-conspirators and the full extent of the
conspiracy." The judge took note of Camilleri's experience with similar
investigations, and found that the detective "presented a convincing explanation
of the need to intercept wire communications" in this matter. He found that
although other investigative methods had implicated Stevenson in drug and
weapons offenses, they "did not allow . . . law enforcement agents to penetrate
[his] network" or to "obtain information about the extended organization , such
as other members, couriers, buyers, and suppliers." The judge also found that
Camilleri provided adequate reasons why other as yet untried methods, such as
A-0073-15T1
16
search warrants and grand jury subpoenas, would not have been helpful at the
time the wiretap warrant was sought.
The judge did not abuse his discretion by denying the motion to suppress
evidence obtained using the wiretaps, and we further conclude that the judge did
not abuse his discretion when he determined that the wiretap warrant was based
on necessity. The mere fact that certain traditional investigatory techniques,
including Deaney's undercover work, the CIs, physical surveillance, and others,
revealed evidence sufficient to prosecute Stevenson for some offenses did not
negate a finding of necessity. These methods were partially effective, but likely
would not have assisted detectives any further in identifying Stevenson's heroin
suppliers, all of his lower-level dealer customers, any user customers, or other
co-conspirators. Further, Camilleri's application did not contain conclusory or
boilerplate statements, and instead included details specific to this investigation.
The application demonstrated a good faith effort to utilize other investigative
techniques before resorting to wiretapping.
Stevenson argues that the court erred by denying his requests to reveal the
identity of the CI who introduced Deaney to him. He asserts that the CI was
"directly involved or played an integral role in the crimes at issue" and that
therefore disclosure would have been proper. Substantial deference is given to
A-0073-15T1
17
a judge's evidentiary rulings. State v. Sessoms, 413 N.J. Super. 338, 342 (App.
Div. 2010). A trial judge's decision denying a motion to disclose the identity of
a CI is reviewed for abuse of discretion. State v. Milligan, 71 N.J. 373, 384
(1976).
"Protecting the identity of [CIs] is a privilege afforded the State in
recognition of its compelling need to protect its sources of information
concerning criminal activity." State v. Brown, 170 N.J. 138, 149 (2001). The
purpose of this privilege is to promote communications by citizens to law
enforcement about their knowledge of wrongdoing by offering "anonymity to
avoid both retribution and social ridicule." State v. Infante, 116 N.J. Super. 252,
257 (App. Div. 1971).
To that end, a witness may "refuse to disclose the identity of a person who
has furnished information purporting to disclose a violation of . . . the laws of
this State or of the United States" to a government representative charged with
the duty of enforcing those laws. N.J.S.A. 2A:84A-28; N.J.R.E. 516. Evidence
of a CI's identity is "inadmissible, unless the judge finds that (a) the identity of
the person furnishing the information has already been otherwise disclosed or
(b) disclosure of his [or her] identity is essential to assure a fair determination
of the issues." N.J.S.A. 2A:84A-28; N.J.R.E. 516.
A-0073-15T1
18
When deciding whether to order disclosure of a CI's identity, a judge must
weigh – on a case-by-case basis – the State's interest in protecting the informant
against the defendant's need for the information, State v. Adim, 410 N.J. Super.
410, 434 (App. Div. 2009), "taking into consideration the crime charged, the
possible defenses, the possible significance of the informer's testimony, and
other relevant factors." Roviaro v. United States, 353 U.S. 53, 62 (1957).
"Without a strong showing of need, courts will generally deny a request for
disclosure." State v. Florez, 134 N.J. 570, 578 (1994). A judge need not order
disclosure simply because a defendant wishes "to test the truth of [an] officer's
statement that there is [a CI] or as to what the [CI] related or as to the [CI's]
reliability." State v. Burnett, 42 N.J. 377, 385 (1964).
However, the State cannot invoke the privilege if the CI is an "essential
witness on a basic issue in the case" or an "active participant in the crime for
which the defendant is on trial," or when "fundamental principles of fairness"
mandate disclosure. Florez, 134 N.J. at 579. Even if the CI's safety would be
compromised, that fact cannot surmount the need for trial fairness when
"disclosure is material to the defense and to a balanced presentation of essential
issues." Id. at 582.
A-0073-15T1
19
Where the courts have required disclosure of a CI's identity, "the factual
complex generally involves situations where the informant was an actual
participant in the precise criminal act for which the accused is being charged."
Infante, 116 N.J. Super. at 258. For example, in Florez, 134 N.J. at 578-91, our
Supreme Court concluded that the trial judge erred in refusing to order
disclosure of two CIs' identities, because both played "a central and critical part"
in the commission of the crimes charged. There, the CIs singled out the
defendants as targets of law enforcement's reverse sting operation and arranged
a meeting with the defendants for a drug purchase. Id. at 576-591. At the
meeting, one CI sold drugs to the defendants. Id. at 577. The Court found that
the CIs' credibility was "pivotal" to the case, particularly since the "primary
evidence" of the drug transaction was founded solely on the account of the seller
CI, who was the only witness besides the defendants. Id. at 581. The Court
concluded that the CIs' names and addresses should have been disclosed, to
allow the defendants to potentially gather information that could impeach their
credibility. Ibid. See also Maudsley v. State, 323 N.J. Super. 579, 594 (App.
Div. 1999) (explaining that nondisclosure was improper where the CI was the
only person who participated in a "bogus" drug transaction that formed sole
basis of search warrant application).
A-0073-15T1
20
By contrast, where a CI "plays only a marginal role, such as providing
information or 'tips' to the police or participating in the preliminary stage of a
criminal investigation," denial of disclosure of his or her identity is proper.
Milligan, 71 N.J. at 387. "Proof that the informer witnessed the criminal
transaction, without more, is usually considered insufficient to justify
disclosure." Id. at 388. Further, where the CI's role "is confined to introducing
the undercover agent to [the] defendant, the majority of decisions have refused
to compel disclosure of the informer's identity." Id. at 388-89. Generally, "when
an informer does not testify and was not involved in the crime, information that
would be relevant to impeach the informer's credibility has no bearing on the
issues at trial" and the defendant thus cannot demonstrate sufficient "need" to
justify disclosure. Adim, 410 N.J. Super. at 434-35.
In Milligan, 71 N.J. at 388-90, the CI introduced an undercover agent to
the defendant, but because the CI was not the purchaser and did not induce the
defendant to make the drug sale, the Court found no error in the trial judge's
denial of disclosure. See also State v. Oliver, 50 N.J. 39, 41-42 (1967)
(indicating that nondisclosure was proper where CI accompanied undercover
agent to a bar to shield him from suspicion, but played no part in the crimes
charged); State v. Williams, 364 N.J. Super. 23, 40 (App. Div. 2003) (stating
A-0073-15T1
21
that nondisclosure was proper where CI called defendant to arrange drug deal,
but deal never occurred and CI was not involved in the drug possession c harges
against defendant); State v. Salley, 264 N.J. Super. 91, 98-101 (App. Div. 1993)
(reversing an order requiring disclosure where CI "lur[ed]" defendant to bring a
gun out of his apartment but otherwise was "no more than a witness to the
criminal event"); State v. Varona, 242 N.J. Super. 474, 479-80 (App. Div. 1990)
(explaining that nondisclosure was proper where CI introduced undercover
officer to defendant and told him when defendant had drugs ready, but "did not
negotiate, conduct or set up any of the sales").
Additionally, the privilege is no longer applicable after the CI's identity
"has been disclosed to those who would have cause to resent" that person's
assistance to the government. Roviaro, 353 U.S. at 60. But because the
privilege belongs to the State and not to the CI, only disclosure by the State may
void it. Sessoms, 413 N.J. Super. at 343-44. For example, in Sessoms, we found
that there was no "disclosure" sufficient to void the privilege where the CI
submitted an affidavit identifying himself by name and exculpating the
defendant. Id. at 342-44. We reversed the trial judge's order requiring the State
to "confirm or deny" whether the person who submitted the affidavit was indeed
the CI. Id. at 340-41. In Williams, 364 N.J. Super. at 38, we found that the
A-0073-15T1
22
State did not waive the privilege where the defendant remembered the CI who
called him to set up a drug sale where he was subsequently arrested. See also
Salley, 264 N.J. Super. at 101-02 (stating that disclosure was not required
although the CI's identity was "only thinly concealed").
On August 2, 2013, Stevenson requested disclosure of the identities of two
CIs referenced by detectives during grand jury proceedings. He argued that the
CI, who introduced Deaney to Stevenson, was "directly involved on multiple
occasions with the investigation" and could be "an essential witness" since
police relied on information he provided. Through counsel, Stevenson indicated
that he had guessed who this CI was, and that the CI was "a criminal" who stole
and forged checks in Stevenson's name. Essentially, Stevenson asked not that
the CI's identity be disclosed to him, but that he be permitted to reveal the CI's
identity to the jury at trial, thus utilizing information about his criminal activities
to impeach the State witnesses' testimony that the CI was a reliable informant.
The judge found that the CI "was not an actual participant" in any crime
with which Stevenson was charged, because he "merely set up and witnessed the
first two meetings" between Stevenson and Deaney. He noted that while the CI
directly purchased heroin from Stevenson on one subsequent occasion,
Stevenson was not charged with that transaction. Additionally, the CI was
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23
present during one of the gun purchases at Stevenson's request, not the State's.
The judge found that this "limited involvement . . . [did] not sufficiently
outweigh the State's interest in protecting the free flow of information." He also
found that the CI's identity need not be disclosed based on "fundamental
fairness," because Stevenson had not made a "strong showing of need."
At trial, defense counsel asked Deaney if the CI was "somebody Mr.
Stevenson obviously knew," and Deaney answered, "I would assume so."
Counsel then asked the judge if she could say the CI's name, and the judge told
her she could not. She instead asked Deaney whether the CI was "involved in
supplying drugs to smaller-level drug dealers," and Deaney said he did not
know. Later, on re-cross examination, counsel asked Deaney if the CI had
agreed to assist investigators "to try to avoid going to jail," and Deaney again
said he did not know. Counsel continued to ask questions about the CI, and the
court sustained the State's objection and told counsel she could not ask any
further questions that could reveal the CI's identity.
On April 22, 2015, Stevenson moved to recall Deaney to permit further
cross-examination regarding the CI, and for permission to cross-examine other
State witnesses on that subject. During a hearing on April 23, 2015, defense
counsel reiterated that Stevenson knew who the CI was, and argued that three
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24
State witnesses had mentioned the CI's name and spoken about his activities
during the investigation. For example, one of Stevenson's associates, Kenrick
Crawford, testified, using the CI's name, that Stevenson borrowed the CI's car
to go to Newark on August 1, 2011. However, neither Crawford nor any other
witness described the man they named as a CI or identified him as the person
who introduced Deaney to Stevenson.
Counsel requested permission to question Deaney and Camilleri about the
CI again, this time using his name. She specifically wanted to ask about the fact
that the CI was charged with conspiracy to distribute CDS, theft, and forgery, to
impeach the detectives' reliance on information from him. The court found that
counsel could cross-examine detective witnesses about their interactions with
the CI but that she was "foreclosed from getting into" the CI's identity in keeping
with the 2013 denial of Stevenson's prior motion. The judge told counsel she
could question witnesses about the charges against the CI to impeach the
witnesses' testimony, but that she could only refer to him as "the confidential
informant."
Counsel abided by that ruling, and later solicited testimony from Camilleri
that the CI was charged with racketeering. She questioned the detective as to
whether he would "want to gather information from a person who's a dishonest
A-0073-15T1
25
person." Counsel also made references to the CI's criminal activities during her
closing statement, calling his reliability as an informant into question. She urged
the jury not to "ignore" the issue of the CI's credibility.
We conclude that the judge did not abuse his discretion by denying
Stevenson's motions to reveal the CI's identity to the jury. Although Stevenson
may have guessed who the CI was, this knowledge was not a result of a
disclosure by the State; thus the State did not waive its privilege to protect the
CI's identity. The judge properly found that the CI was not an active participant
in the crimes charged and his identity was not crucial to Stevenson's defense.
As in cases like Milligan, the CI introduced Stevenson to an undercover agent
and witnessed some of the charged crimes, but did not buy the drugs, induce any
sales, or otherwise participate. Finally, nondisclosure to the jury of the CI's
name does not appear to have hampered Stevenson's defense, since counsel was
nevertheless able to cross-examine key State witnesses about the CI's criminal
activities and thus impugn his credibility and detectives' reliance on him.
Stevenson next argues that certain remarks made by the prosecutor during
summation deprived him of a fair trial. He complains that the prosecutor stated
that 1) defense counsel "humiliated witnesses on cross-examination," which cast
aspersions upon him and counsel, and 2) he did not attack Camilleri's warrant
A-0073-15T1
26
application on probable cause grounds, which improperly imp lied that he had
the burden of production and proof at trial. He contends that the court erred by
declining to grant a mistrial or to issue curative instructions because of these
comments.
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented," and are "expected to make vigorous and forceful closing arguments
to juries." State v. Frost, 158 N.J. 76, 82 (1999). However, a prosecutor "must
refrain from improper methods that result in a wrongful conviction . . . ." State
v. Smith, 167 N.J. 158, 177 (2001).
For example, prosecutors must not "make inaccurate legal or factual
assertions," and must "confine their comments to evidence revealed during the
trial and reasonable inferences to be drawn from that evidence." Id. at 178. A
prosecutor is also "not permitted to cast unjustified aspersions on the defense or
defense counsel." Id. at 177. Further, he or she may not comment upon a
defendant's failure to testify or remark that the State's evidence was
"uncontradicted" or that the defendant failed to produce witnesses on his or her
behalf. State v. Engel, 249 N.J. Super. 336, 381-82 (App. Div. 1991).
A-0073-15T1
27
However, if a prosecutor's remarks "are based on the facts of the case and
reasonable inferences therefrom, what is said in discussing them, 'by way of
comment, denunciation or appeal, will afford no ground for reversal.'" Smith,
167 N.J. at 178 (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). A
prosecutor may fairly comment upon defense counsel's tactics and respond "in
order to 'right the scale.'" Engel, 249 N.J. Super. at 379 (quoting United States
v. Young, 470 U.S. 1, 13 (1985)). "A prosecutor is not forced to idly sit as a
defense attorney attacks the credibility of the State's witnesses," State v. Hawk,
327 N.J. Super. 276, 284 (App. Div. 2000), and a response may be appropriate
even if it "tends to undermine the defense case." State v. Nelson, 173 N.J. 417,
473 (2002).
Moreover, a finding of prosecutorial misconduct "does not end a
reviewing court's inquiry; in order to merit reversal, the misconduct must have
deprived the defendant of a fair trial." Hawk, 327 N.J. Super. at 281. A
prosecutor's misconduct must generally be "egregious," State v. Echols, 199 N.J.
344, 360 (2009), and substantially prejudice the defendant's right to the jury's
evaluation of the merits of his defense. Smith, 167 N.J. at 181-82. An appellate
court "must assess the prosecutor's comments in the context of the entire trial
record," Nelson, 173 N.J. at 472, including whether the trial was lengthy and the
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28
prosecutor's remarks short or "errant." Engel, 249 N.J. Super. at 382. Further,
where a prosecutor's comments are "only slightly improper," a general jury
charge to the effect that statements during summation are not evidence and
should be disregarded if they conflict with jurors' recollection of events "may
serve to ameliorate potential prejudice." Frost, 158 N.J. at 86-87.
During his summation, the prosecutor discussed Crawford's testimony,
conceding that he was a drug user who was "down on his luck." The prosecutor
said Crawford was thrown out of his house by his mother, and continued:
How many times was he asked to go through that?
Now, think about the cross-examinations and where
they went sometimes. Are these intended to try to hurt
their credibility or try to humiliate someone? Because
humiliating somebody on the stand doesn't do anything
to affect their credibility whether or not they are telling
the truth.
Later, the prosecutor commented that defense counsel questioned
Camilleri about whether co-conspirators arrested on charges of racketeering
were simply heroin buyers. The prosecutor noted that Camilleri submitted an
affidavit in support of issuance of the arrest warrants, and said:
The probable cause on that arrest affidavit was never
attacked. . . . No inconsistencies shown. It wasn't
alleged he lied in it. It wasn't alleged he said anything
other than what he testified to on the stand. So that
whole line [of questioning] by [defense counsel],
charged this person with racketeering, charged that
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29
person with racketeering, he was up front about all of
it. He told you.
Stevenson did not object at the time of the summation.
The next day, Stevenson moved for a mistrial or a curative instruction,
arguing that the prosecutor had "disparag[ed]" the defense and improperly
implied that he had the burden of proof to challenge Camilleri's affidavit. The
prosecutor explained that he had intended to make a "fair comment" on counsel's
cross-examination of Crawford, in which she brought up the facts that his mother
threw him out of her house and that he was made fun of in school, because he
felt that those questions were irrelevant to the case and Crawford's credibility.
He said that he mentioned the arrest affidavit to rebut counsel's implication
during cross-examination that Camilleri "overcharg[ed] his case" against
various co-conspirators.
The judge found that the prosecutor's remarks "were totally fair comment
within the context of everything that [had] occurred in the course of [the] trial ."
He also found that the defense had adopted tactics that "were directly related to
what [Stevenson was] claiming that the prosecutor inappropriately commented
on." As a result, he denied the motion. Later, the judge instructed the jury that
"[a]rguments, statements, remarks, openings and summations of counsel . . .
must not be treated as evidence."
A-0073-15T1
30
The prosecutor's characterization of defense counsel's cross-examination
of Crawford as "humiliating" was not so egregious as to deprive Stevenson of a
fair trial. Rather, this comment was a fair response to the defense's tactics in
trying to discredit Crawford; the prosecutor simply attempted to "right the scale"
by stating that the drug use and school and family issues divulged on cross -
examination had no bearing on his credibility.
The prosecutor's comment that Camilleri's affidavit of probable cause for
the arrest warrants was "never attacked" is a fair response to defense counsel's
suggestion that Camilleri overcharged co-defendants – and thus possibly
Stevenson himself – and as a proper attempt to repair Camilleri's credibility.
Even if the prosecutor's statement was improper, the comment was not long or
inappropriately forceful, particularly considering the length of the trial and the
summation itself, and the overall strength of the evidence against Stevenson.
The prosecutor's comments did not deprive Stevenson of a fair tri al.
Stevenson argues that the trial court erred by failing to engage in a
colloquy with him about whether he wanted to testify, and by instead relying on
his counsel's statement that he did not intend to do so. Relatedly, he argues that
the court erred in ruling that if he did testify, his prior convictions would be
admissible to impeach him. Stevenson asserts that the court did not properly
A-0073-15T1
31
balance the remoteness of his convictions and the nature of the crimes to
determine whether the relevance to his credibility outweighed potential
prejudice.
In general, a judge's evidentiary rulings are entitled to deference and are
reviewed under an abuse of discretion standard. State v. Harris, 209 N.J. 431,
439 (2012). More specifically, "whether a prior conviction may be admitted
into evidence against a criminal defendant rests within the sound discretion of
the trial judge." State v. Sands, 76 N.J. 127, 144 (1978). "Ordinarily evidence
of prior convictions should be admitted and the burden of proof to justif y
exclusion rests on the defendant." Ibid.
N.J.R.E. 609(a) permits the admission of a witness's prior convictions for
impeachment purposes. If the witness is a defendant in a criminal case and the
prior conviction is "the same or similar to one of the offenses charged" or "the
court determines that admitting the nature of the offense poses a risk of undue
prejudice," the State may only present the crime's degree, the date of conviction,
and the sentence imposed. N.J.R.E. 609(a)(2). This rule is intended to ensure
that a prior offender does not appear to be "a citizen of unassailable veracity,"
while also protecting a defendant against "the risk of impermissible use by the
jury of prior-conviction evidence." State v. Brunson, 132 N.J. 377, 391 (1993).
A-0073-15T1
32
If more than ten years have passed since the prior conviction or the
witness's release from confinement, evidence of that conviction is only
admissible if the judge determines that its probative value outweighs its
prejudicial effect, with the burden of proof on the proponent of the evidence.
N.J.R.E. 609(b)(1). In determining whether such a conviction is admissible, the
court may consider whether there have been intervening convictions; the
number, nature, and seriousness of the intervening offenses; whether the
conviction involved a crime of dishonesty or fraud; how remote the conviction
is in time; and the seriousness of the crime. N.J.R.E. 609(b)(2).
"Remoteness cannot ordinarily be determined by the passage of time
alone," since "[a] jury has the right to weigh whether one who repeatedly refuses
to comply with society's rules is more likely to ignore the oath requiring veracity
on the witness stand . . . ." Sands, 76 N.J. at 144-45. A court therefore must
conduct a balancing test to determine whether the conviction's relevance with
respect to credibility outweighs any prejudice to the defendant. Id. at 144.
Regardless, if an older conviction is deemed admissible for impeachment
purposes it must be "sanitized" in accordance with N.J.R.E. 609(a)(2).
Here, the prosecutor stated that he intended to use Stevenson's criminal
history for impeachment purposes if Stevenson testified. On April 22, 2015, he
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33
provided the court with a copy of Stevenson's criminal history, which included
a 2007 conviction of aggravated manslaughter and four 1996 convictions of
conspiracy, possession of CDS, and two counts of possession of CDS with intent
to distribute.
The judge held a hearing on the admissibility of all of Stevenson's
convictions for impeachment purposes. The prosecutor agreed that all of the
charges should be "sanitized" and said that he would mention only the
indictment numbers, degrees of the charges, dates of the convictions, and
sentences. He argued that the 1996 convictions were not unduly remote in time
because Stevenson committed manslaughter related to the 2007 conviction very
soon after he completed his sentence for those earlier crimes. He also noted that
Stevenson began the criminal activity that was the subject of the current trial
less than a year after completing his 2007 sentence.
The judge found that all of the convictions would be admissible against
Stevenson if he testified, concluding that they were "in no way remote" because
he had "scarcely had a year out of custody [on] any of these matters when he did
not get in trouble again." The judge asked counsel whether Stevenson would
"proceed[] forward or rest[]," and she said he planned to rest.
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34
We see no abuse of discretion. The 2007 conviction was admissible under
N.J.R.E. 609 because it involved a charge different from any that he currently
faced. The judge also properly balanced the remoteness of the 1996 convictions
against the possible prejudice to Stevenson. The court's finding that Stevenson's
intervening 2007 conviction and the fact that he had not spent more than a year
out of custody without committing any offenses since 1996 was in keeping with
N.J.R.E. 609(b) and Sands. Further, the State agreed to present only a sanitized
version of Stevenson's history, in accordance with N.J.R.E. 609(a)(2).
The right of a criminal defendant to testify on his or her own behalf is
essential to due process and may only be waived knowingly and voluntarily.
State v. Ball, 381 N.J. Super. 545, 556 (App. Div. 2005). The courts have
recognized that it is "the better practice for the court to determine on the record
whether a defendant wishes to testify or to waive that right." State v. Lopez,
417 N.J. Super. 34, 39 (App. Div. 2010).
However, "when a defendant is represented by counsel, the court need not
engage in a voir dire on the record" to establish a waiver. Ball, 381 N.J. Super.
at 556. It is the responsibility of defense counsel, not the trial court, to advise
the defendant on whether to testify. State v. Savage, 120 N.J. 594, 630 (1990).
To ensure that counsel meets this obligation, it may be the "better practice" for
A-0073-15T1
35
a court to inquire whether counsel has advised a defendant of the right to testify.
Id. at 631. Ultimately, the decision whether to testify is "an important strategical
choice, made by defendant in consultation with counsel." Ibid.
During a charge conference on April 30, 2015, the judge noted that
because Stevenson did not testify, there would be no mention of his prior
convictions in any instruction on entrapment. On May 6, 2015, defense counsel
verified with the judge that he would give an instruction to the jury not to make
a negative inference about Stevenson's decision not to take the stand. The judge
asked Stevenson whether he knew he had a right to testify and whether counsel
had discussed the decision not to do so with him. Stevenson replied that he "was
going to testify" and "wanted to," but that the judge had "pushed [him] away
from" doing so by ruling that the prosecutor could present his criminal record.
He said that the court "made that decision for [him]." The judge found that
Stevenson spoke to his attorney and decided not to testify based on the ruling as
to his prior convictions.
Counsel represented Stevenson, who freely made the strategic choice not
to testify to avoid the presentation of his criminal history to the jury. The judge
properly relied on defense counsel's statement that the defense would rest
without his taking the stand. Thus, there was no error.
A-0073-15T1
36
In a pro se supplemental brief, Stevenson argues that the court erred by
failing to acquit him on the weapons-related charges on grounds of due process
entrapment. He asserts that Deaney initiated the gun sales and that therefore
police "created the crime[s]" and "controlled and directed" their commission.
Stevenson states that the police had no prior evidence that he was involved with
possessing or selling illegal guns. As a result, he argues that the trial court erred
by not addressing the question whether he was subjected to due process
entrapment.
A defense of entrapment can arise "whenever a defendant introduces
evidence of the government's involvement in the crime through initiation,
solicitation, or active participation." State v. Johnson, 127 N.J. 458, 464 (1992).
"Subjective" entrapment involves the defendant's predisposition to commit the
charged crime, while "objective" entrapment concerns the wrongfulness of the
government's actions. Ibid. N.J.S.A. 2C:2-12 sets forth the elements a
defendant must prove to the jury by a preponderance of the evidence in order to
establish the affirmative defense of entrapment. This "statutory defense"
requires a showing of both wrongful inducement by the State and a lack of
predisposition. Johnson, 127 N.J. at 468-69.
A-0073-15T1
37
However, a defendant may raise an entrapment defense "based on
standards of due process" even where all of the requirements of N.J.S.A. 2C:2-
12 are not met. Id. at 469. This "due process entrapment," which is an issue of
law to be resolved by the court, "concentrates exclusively on government
conduct and the extent of the government's involvement in commission of the
crime." Florez, 134 N.J. at 584. The "essence" of this defense is that the
government has engaged in "egregious or blatant" wrongful conduct that has
induced and increased crime rather than detecting or deterring it. Johnson, 127
N.J. at 470-71.
The defendant has the burden to present evidence in support of a due
process entrapment defense, but once he has done so, the State has the burden
to show that entrapment has not occurred by clear and convincing evidence.
Florez, 134 N.J. at 590. This is because in cases of due process entrapment, the
State has allegedly "created the situation that is under scrutiny" and has "far
more control over the evidence relevant to proving or disproving" that
entrapment occurred. Ibid.
Police "should ordinarily have a reasonable suspicion that the targeted
defendant would be likely to engage in the commission of the crime
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38
contemplated." Id. at 587. Factors relevant to the analysis of due process
entrapment include:
(1) whether the government or the defendant was
primarily responsible for creating and planning the
crime, (2) whether the government or the defendant
primarily controlled and directed the commission of the
crime, (3) whether objectively viewed the methods used
by the government to involve the defendant in the
commission of the crime were unreasonable, and (4)
whether the government had a legitimate law
enforcement purpose in bringing about the crime.
[Johnson, 127 N.J. at 474.]
Further, the court may consider whether law enforcement engaged in tactics like
"heavy-handed pressure; repetitive and persistent solicitation, or threats or other
forms of coercion; the use of false and deceitful appeals to such humanitarian
instincts as sympathy, friendship, and personal need; [or] the promise of
exorbitant gain . . . ." Id. at 478. Ultimately, the standard is "whether the police
involvement in bringing about the crime was patently wrongful." Id. at 482.
Cases where due process entrapment has been found have involved deep
and widespread engagement by law enforcement in creating, planning, and
carrying out the crime. See, e.g., Florez, 134 N.J. at 585-89 (requiring retrial
where police, on uncorroborated information from CIs, organized a "reverse
sting" and sold cocaine to the defendants); State v. Grubb, 319 N.J. Super. 407,
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39
410-11 (App. Div. 1999) (reversing conviction where police arrested defendant
after receiving information from unsupervised CI who organized prescription
drug sales).
By contrast, in Johnson, 127 N.J. at 461, the Court found no due process
entrapment where law enforcement developed a "plan" to give the defendant, a
known buyer and user of cocaine, "the opportunity to steal drugs from a drug
dealer and to sell those drugs." This action was based on another CI's account
that the defendant once said he would commit such a crime if he had the chance.
Ibid. Although the informant "presented and explained the scheme" to the
defendant, the defendant thereafter "actively engaged in the discussions and
refinement of the plan" and added key details. Id. at 462.
Here, Deaney testified that during a phone conversation with Stevenson,
Stevenson commented that he had some "explosive" heroin. The detective
admitted that he raised the subject of buying a handgun based on his
misunderstanding of the word "explosive" to mean that Stevenson had weapons
to sell. Camilleri testified that, to his knowledge, Stevenson did not have any
guns to sell. Stevenson requested a charge on statutory entrapment, and the
court gave one. However, Stevenson did not raise due process entrapment
before the judge.
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40
We conclude that the situation in this case is more akin to that in Johnson.
Although Deaney may have brought up the subject of firearms, Stevenson
immediately confirmed that he could facilitate an illegal gun sale and engaged
in all of the planning and execution of the crime. Stevenson contacted Castro
and arranged the meeting where Castro sold the first gun to Deaney. After that,
the State had reasonable suspicion that Stevenson was involved in weapons
trafficking, and Deaney's inquiry whether he could buy more guns was not
"heavy handed pressure." Stevenson readily agreed to organize another sale,
and police had no involvement with Stevenson's arrangement with Taylor for
the second gun transaction. Thus, the State's actions in its investigation did not
rise to the level of "egregious wrongful conduct" necessary for a finding of due
process entrapment.
Finally, Stevenson argues that his sentence is excessive. He asserts that
the court's aggregate sentence of fifty years in prison was inappropriate, and that
the trial judge improperly tried to "make up for" the acquittal of the first-degree
leader of a trafficking network charge. He also argues that the trial judge should
not have found aggravating factor five because "[t]he claimed organized
criminal activity was already part and parcel of the offenses charged against
defendant and heard at trial." Stevenson contends that the judge erred in
A-0073-15T1
41
imposing consecutive sentences, because all of his crimes were part of a "single,
though lengthy, period of aberrant behavior."
"Appellate review of sentencing decisions is relatively narrow and is
governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,
297 (2010). A trial judge enjoys "considerable discretion in sentencing." State
v. Blann, 429 N.J. Super. 220, 226 (App. Div. 2013), rev'd on other grounds,
217 N.J. 517 (2014). An appellate court first must review whether the
sentencing court followed the applicable sentencing guidelines. State v. Natale,
184 N.J. 458, 489 (2005). The Code of Criminal Justice sets forth ranges within
which a defendant may be sentenced for each degree of crime. State v. Case,
220 N.J. 49, 63 (2014).
Here, the judge merged most of the ninety-one counts, leaving eight for
sentencing.2 N.J.S.A. 2C:44-3 grants a sentencing court discretion to impose an
2
The judge imposed a sentence of twenty years in prison with a ten-year period
of parole ineligibility on count three; ten years with a five-year period of parole
ineligibility on count four, second-degree conspiracy to distribute CDS; ten
years with a five-year period of parole ineligibility on count eighty-three,
second-degree distribution of CDS; five years with a two and a half-year period
of parole ineligibility on count 102, third-degree distribution of CDS; five years
on count 124, second-degree unlawful possession of an assault firearm; five
years with a forty-two-month period of parole ineligibility on count 126, second-
degree unlawful sale of an assault firearm; eighteen months on count 132,
fourth-degree possession of a prohibited weapon – large capacity magazine; and
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42
extended term if he is a "persistent offender"; Stevenson met the criteria due to
his prior drug-related convictions. N.J.S.A. 2C:43-7(a)(3) provides that for
second-degree crimes, the court may impose an extended term between ten and
twenty years. As a result, the twenty-year term imposed on Stevenson under
count three was proper. The remaining sentences also fell within the appropriate
sentencing ranges under N.J.S.A. 2C:43-6: between five and ten years for the
second-degree charges, between three and five years for the third-degree charge,
and eighteen months for the fourth-degree charges. Indeed, Stevenson's
sentences on the second-degree weapons charges were at the bottom of the
range.
A reviewing judge next must ensure that any aggravating factors found by
the trial judge under N.J.S.A. 2C:44-1 are based upon sufficient credible
evidence in the record. State v. Miller, 205 N.J. 109, 127 (2011). If the factors
found by the trial judge are so grounded, the sentence must be affirmed even if
the reviewing court would have reached another result. State v. O'Donnell, 117
N.J. 210, 215 (1989). A judge "must qualitatively assess" the factors it finds,
and assign each an "appropriate weight." Case, 220 N.J. at 65. An appellate
eighteen months on count 134, fourth-degree unlawful sale of a large capacity
magazine.
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43
court may remand for resentencing where the trial judge fails to provide a
qualitative analysis of the relevant factors, or if the trial judge "considers an
aggravating factor that is inappropriate to a particular defendant or to the offense
at issue." State v. Fuentes, 217 N.J. 57, 70 (2014).
Under N.J.S.A. 2C:44-1(a)(5), one aggravating factor exists when "[t]here
is a substantial likelihood that the defendant is involved in organized criminal
activity." In finding this factor, the court here stated that "the proofs in this case
clearly indicated [Stevenson] was involved clearly in organized criminal
activity." The court based this finding on the fact that this was "not some street
corner seller of drugs a bag at a time" and that Stevenson's crimes involved
"wholesale lots of heroin."
We see no error in the judge's application of aggravating factor five. He
did not "double count" any element of a crime of which Stevenson was
convicted. Although he was charged as the leader of a criminal enterprise, the
jury acquitted him of that offense, and none of the remaining charges involved
an element of organization. See State v. Pych, 213 N.J. Super. 446, 460-61
(App. Div. 1986) (upholding application of factor five where defendant was
convicted of conspiracy to promote gambling, since involvement in organized
crime was not an element of either conspiracy or the underlying offense).
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44
N.J.S.A. 2C:44-5(a) provides that when multiple sentences are imposed
on a defendant for more than one offense, these sentences "shall run
concurrently or consecutively as the court determines at the time of sentence
. . . ." The statute states that there "shall be no overall outer limit on the
cumulation of consecutive sentences for multiple offenses." Ibid. In State v.
Yarbough, 100 N.J. 627 (1985), our Supreme Court set forth guidelines for
deciding whether consecutive sentences are appropriate. It held that certain
criteria must be considered "when sentence is pronounced on one occasion on
an offender who has engaged in a pattern of behavior constituting a series of
separate offenses or committed multiple offenses in separate, unrelated
episodes." Id. at 644.
The first five criteria are as follows:
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
(a) the crimes and their objectives were
predominately independent of each other;
A-0073-15T1
45
(b) the crimes involved separate acts of violence
or threats of violence;
(c) the crimes were committed at different times
or separate places, rather than being committed so
closely in time and place as to indicate a single period
of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to
be imposed are numerous;
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense[.]
[Id. at 643-44.]
If a sentencing court properly evaluates the Yarbough factors, the court's
decision will not usually be disturbed on appeal. Miller, 205 N.J. at 129.
However, remand may be needed if a court does not explain why consecutive
sentences are warranted and there is no way to deduce or discern the court's
reasoning on appeal. Id. at 129-30. See also State v. Miller, 108 N.J. 112, 122
(1987) (remanding for resentencing where the trial court did not provide "a
separate statement of reasons" to impose consecutive sentences).
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Here, the judge found that "every count that [Stevenson would] be
sentenced on represent[ed] a complete separate and distinct criminal offense."
The judge stated that there was "a pattern of criminal behavior . . . that went on
for a significant period of time" and that Stevenson was responsible for "a good
portion" of the heroin distribution in Monmouth County. He also said that as to
the gun sales, these were "separate and distinct transactions, and under
Yarbough there are no free crimes." However, the court did not analyze the
Yarbough factors, particularly factor three, before imposing consecutive
sentences on counts three, four, and eighty-three, and sentences on counts 102,
124, 126, 132, and 134 that were to run concurrent to each other and to count
eighty-three, but to run consecutive to counts three and four. We therefore
remand for resentencing, with a direction to the judge to consider whether the
Yarbough factors support the imposition of consecutive sentences and to provide
a more detailed analysis of those factors.
II.
On appeal, Taylor makes the following arguments:
POINT I
THE TRIAL COURT VIOLATED DEFENDANT'S
RIGHT TO SELF-REPRESENTATION WHEN IT
DENIED THE DEFENDANT'S MOTION TO
PROCEED PRO SE.
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POINT II
OPINION TESTIMONY BY INVESTIGATING
OFFICERS ABOUT THE MEANING OF
INTERCEPTED COMMUNICATIONS AND
WHETHER OBSERVATIONS CONSTITUTED
NARCOTICS TRANSACTIONS WAS
INADMISSIBLE AND IMPROPERLY INVADED
THE PROVINCE OF THE JURY, THEREBY
DEPRIVING DEFENDANT OF HIS RIGHT TO A
FAIR TRIAL.
A. The Testimony at Issue.
B. Testimony About The Meaning Of
Coded Language And Intercepted
Conversations Was Not The Proper Subject
of Lay Opinion.
C. Opinion Testimony About The
Witnesses' Beliefs That They Observed
Defendant With Heroin or Observed
Individuals Conduct Narcotics
Transactions Was Completely
Inadmissible.
POINT III
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR A NEW TRIAL ON
THE BASIS THAT THE COURT HAD
IMPROPERLY CHASTISED DEFENSE COUNSEL
IN THE PRESENCE OF THE JURY FOR
OBJECTING DURING THE STATE'S SUMMATION.
POINT IV
DEFENDANT'S SENTENCE IS MANIFESTLY
EXCESSIVE AND MUST BE REDUCED.
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Taylor argues that the court violated his right to represent himself at trial.
He contends that the trial judge did not engage in the required colloquy to
determine whether he was knowingly and voluntarily waiving his right to
counsel, and that this error requires a new trial. The State agrees that the court
erred and that a new trial is necessary.
"[A] defendant has a constitutionally protected right to represent himself
in a criminal trial." Faretta v. California, 422 U.S. 806, 816 (1975). However,
because a waiver of the right to counsel constitutes a relinquishment of "many
of the traditional benefits associated with" that right, it must be made
"knowingly and intelligently." Id. at 835. When a criminal defendant requests
to proceed pro se, the judge must "engage in a searching inquiry" with him to
determine whether he understands the implications of the waiver. State v.
Crisafi, 128 N.J. 499, 510 (1992).
In Crisafi, the Court held that a trial judge must inform defendants of "the
nature of the charges against them, the statutory defenses to those charges, and
the possible range of punishment." Id. at 511. The judge should also tell
defendants of "the technical problems they may encounter in acting as their own
counsel and of the risks they take if their defense is unsuccessful." Id. at 511-
12. Defendants should be cautioned that they must conduct their defense in
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accordance with the relevant rules of procedure and evidence, that "a lack of
knowledge of law may impair their ability to defend themselves," and that in
general it may be unwise not to accept counsel's assistance. Id. at 512.
In State v. Reddish, 181 N.J. 553, 594 (2004), the Court expanded the
inquiry to include areas such as
whether defendant will experience difficulty in
separating his roles as defendant and counsel; whether
defendant understands that he not only has the right not
to testify, but also the right not to incriminate himself
in any manner; whether he understands that he could
make comments as counsel from which the jury might
infer that he had knowledge of incriminating evidence
(and the difficulty in avoiding such comments); and
whether he fully understands that if he crosses the line
separating counsel from witness, he may forfeit his
right to remain silent and subject himself to cross-
examination by the State.
In ascertaining whether a defendant's "knowingness" is "real or feigned," a court
should ask "appropriate open-ended questions that will require [the] defendant
to describe in his own words his understanding of the challenges that he will
face . . . ." Id. at 594-95.
Ultimately, the focus "must be on the defendant's actual understanding of
the waiver of counsel." Crisafi, 128 N.J. at 512. All reasonable presumptions
against waiver should be indulged. State v. Gallagher, 274 N.J. Super. 285, 295
(App. Div. 1994). However, a defendant should not be deprived of the right of
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self-representation based solely on "the complexity of the proceedings or the
magnitude of the consequences" he faces. State v. Russo, 243 N.J. Super. 383,
401 (App. Div. 1990). Additionally, the goal of the court's colloquy with a
defendant is not to explore whether he possesses any particular "technical legal
knowledge," State v. King, 210 N.J. 2, 19 (2012), and a defendant need not
demonstrate "the skill and experience of a lawyer" before a knowing and
voluntary waiver is found. Reddish, 181 N.J. at 595. Finally, if the appropriate
colloquy is conducted and it is determined that the defendant's waiver of counsel
is knowing and voluntary, that choice "must be honored" even if the court feels
it is a "poor" or "unwise" one. Gallagher, 274 N.J. Super. at 296; State v.
Thomas, 362 N.J. Super. 229, 242-43 (App. Div. 2003).
On July 31, 2014, Taylor moved to proceed pro se. The trial judge
adjourned the matter, explaining that there needed to be a hearing to decide
whether he was "capable of representing [him]self." The judge "strenuously
suggest[ed]" that Taylor "have a very long conference with [his] attorney and
rethink [his] position."
On January 8, 2015, the court held the hearing on Taylor's motion, and
began by stating that Taylor was one of three remaining defendants in the matter
who did not "cut their losses and . . . move[] on with their lives" by accepting a
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plea deal. The court then informed Taylor that, at trial, he would face up to 103
years' imprisonment if convicted and given maximum sentences. Taylor stated
that he nevertheless wanted to proceed pro se, because he believed the charges
against him to be "false" and felt his counsel was "not representing [him] to [his]
satisfaction."
The judge asked Taylor to name the charges against him, while saying that
if he wanted to "get rid of [his] attorney" he would need to "be smarter than" the
attorney. The judge also questioned whether Taylor had been "listening to the
brain trust over in the jail" and if that was why he had made his motion. Taylor
knew that he was charged with racketeering and possession of CDS, but he did
not know the rest of his charges "off hand." When the judge asked what defenses
were available, Taylor replied that he was "not guilty of the charges" and that
he knew "the burden of proof [was] on the prosecution" to establish his guilt.
Next, the judge informed Taylor that if he proceeded pro se, his attorney
would remain available as standby counsel but could not offer legal advice. The
judge opined that his "sense" of the matter was that eventually Taylor would
want "to get [counsel] to do his lifting for him." Taylor said, "I will defend
myself," but asked whether counsel's answering of legal questions could be
considered giving legal advice.
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The judge said that Taylor was "clearly not listening," and had "failed to
grasp the legal concept of cutting [his] losses and getting on with [his] life." He
further said that Taylor would "be the first one yelling like crazy if [he got]
convicted in this matter . . . and [went] to jail for the rest of [his] life." Taylor
stated, "I'm fully aware of it and I'm willing to take my responsibility. I don't
have any problem with that." At that point, the judge said that "based on
[Taylor's] responses and what his anticipation of standby counsel would be," it
was "clear" that Taylor was "not capable of representing himself." As a result,
the motion to proceed pro se was denied.
The judge did not engage in the full, searching colloquy described in
Faretta, Crisafi, and Reddish to determine whether Taylor's waiver of counsel
would be knowing and voluntary. The court acted appropriately by cautioning
Taylor about the sentence he faced at trial and asking whether he understood the
charges. But the judge's statement that Taylor needed to be "smarter than" his
attorney was not the proper standard. While he may have been correct that
dispensing with counsel would not be the best choice for Taylor, it was
erroneous to base his decision on that view, particularly where Taylor appeared
otherwise "literate, competent, and understanding" and indicated his willingness
to take responsibility for his decision. Faretta, 422 U.S. at 835.
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"The right [of self-representation] is either respected or denied; its
deprivation cannot be harmless." King, 210 N.J. at 22 (alteration in original)
(quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)). As a result,
although Taylor "may have been represented by a skilled attorney, the evidence
against him may have been substantial, and the verdict may find strong support
in the record; that matters not." Ibid.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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