Petition for Writ of Certiorari — Derek Sample, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison

Supreme Court briefFeb 12, 2019

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IN THE

SUPREME COURT OF THE UNITED STATES

No.

1jJ276

DEREK SAMPLE

Petitioner,

VS.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SUBMITTED BY:

Derek Sample #506647/714575B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

FILED

FEB 122019

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTIONS PRESENTED

Whether the Third Circuit Court of Appeals Erred in Denying

Petitioner a Certificate of Appealability on His Claim that the

State Court Violated the United States Supreme Court Ruling in

Duncan v. Louisiana, Lewis v. United States and Illinois v. Allen

in Failing to Protect Petitioner's Right to be Present at All

Critical Phases of His Trial.

Whether the Third Circuit Court of Appeals Erred in Denying

Petitioner a Certificate of Appealability on His Claim that the

State Court Violated His Constitutional Rights to a Fair Trial by

an Impartial Jury by the Admission of Inflammatory and Unduly

Prejudicial Evidence.

Whether the Third Circuit Court of Appeals Erred in Denying

Petitioner a Certificate of Appealability on His Claim that the

Trial's Judge Failure to Instruct the Jury on Reckless

Manslaughter as a Lesser-Included Offense of Murder, and Failure

to Instruct the Jury on Theft as a Lesser-Included Offense to

Robbery was Plain Error.

Whether the Third Circuit Court of Appeals Erred in Denying

Petitioner a Certificate of Appealability on His Claim that the

Trial Counsel's Failure to Object to Evidence of Prior Wrongs

Violated His Right to Effective Assistance of Counsel.

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................ii

LISTED PARTIES ................................................iv

TABLE OF AUTHORITIES ...........................................v

OPINIONS BELOW ................................................vii

STATEMENT OF JURISDICTION ....................................viii

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..............ix

STATEMENT OF THE CASE .........................................1

REASONS FOR GRANTING THE WRIT .................................12

CONCLUSION ....................................................32

iii

LIST OF PARTIES

The Petitioner is Mr. Derek Sample, acting pro se, and is a

prisoner presently confined at New Jersey State Prison in

Trenton, New Jersey.

The respondents are Stephen D'Ilio former. Administrator of

New Jersey State Prison, and the Burlington County Prosecutor's

Office.

TABLE OF AUTHORITIES

Page No

Cases

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct 1999, 26

L.Ed.2d 387 (1970) ...................................16

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct 1444, 20

L.Ed.2d 491 (1968) .....................................2O

Illinois v. Allen, 397 U.S. 337, 90 S.Ct 1057, 2 L.Ed.2d

353 (1970) ...........................................19

Kirnmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91

L.Ed.2d 305 (1986) ...................................13,14

Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32

L.Ed.2d 411 (1972) ...................................17

Lewis v. United States, 146 U.S. 370, 13 S.Ct 136, 36

L.Ed 1011 (1892) ........................................19

Moore v. United States, 432 F.2d 730 (3rd Cir. 1970)

...

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.

158 (1932) ...........................................16

Slack v. McDaniel, 529 U.S. 478 1 120 S. Ct. 1595, 146

L.Ed.2d 542 (2000) ...................................12

Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct 330, 78

L.Ed 674 (1934), overruled on other grounds ..........20

State v. Allah, 334 N.J. SUper 516 (App. Div. 2000)

State v. Allegro, 193 N.J. 352 (2008) ..................13

State v. Brent, 137 N.J. 107 (1994) ....................30

State v. Castagna, 187 N.J. 293 (2006) .................13

State v. Cotto, 182 N.J. 316 (2005) ....................24

State v. Fisher, 156 N.J. 494 (1998) ...................15

State v. Hudson, 119 N.J. 165, 574 A.2d 434 (1990)

State v. Jenkins, 178 N.J. 347 (2004) ...................30

State v. Kelly, 97 N.J. 178 (1984) .....................21

State v. Loftin, 191 N.J. 172 (2007) ....................13

TABLE OF AUTHORITIES

Page No

Cases can't

State v. Long, 173 N.J. 138 (2002) .....................

State v. Smith, 29 N.J. 561, 150 A.2d 769, cert.

denied, 361 U.S. 861, 8 S.Ct 120, 4 L.Ed.2d 103 (1959)

State V. Whaley, 168 N.J. 94 (2001) . ....................

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984) ................................

Terry v. State,332 Md. 329, 631 A.2d 424 (1993) ........

United States v. Cronic, 466 U.S. 648 (1984) ...........

United States v. Himelwright, 42 F.3d 777 (1994) .......

United States v. Morley, 199 F.3d 129 (3d Cir. 1999)

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18

L.Ed.2d 1149 (1967) ..................................

State v. Marrero, 148 N.J. 469, 691 A.2d 293 (1997)

Statutes

28 U.S.C. 2253(c) (2)

N.J.R.E. 803(c) (2)

OPINIONS BELOW

The United States District Court for the District of New

Jersey denied petitioner's petition for a writ of habeas corpus

in an opinion on June 14, 2018.

(See Appendix

Ex-1)

The United States Court Of Appeals for the Third Circuit'

filed an order on November 14, 2018, denying petitioner's

petition for a Certificate of Appealability. (See Appendix

Ex-

27)

The United States Court Of Appeals for the Third Circuit

filed an order on December 14, 2018, denying petitioner's

petition for a rehearing En Banc.

(See Appendix

Ex-28)

vii

STATEMENT OF JURISDICTION

The United States District Court For the District Of New

Jersey denied petitioner's petition for writ of habeas corpus on

June 14, 2018, and on the United States Court of Appeals for the

Third Circuit filed an order on November 14, 2018, denying

petitioner's petition for a Certificate of Appealability and a

petition for a rehearing En Banc were denied on December 14,

2018. This Court has jurisdiction under 28 U.S.C. §1254(1) to

review the circuit court's decisions on a writ of certiorari.

)

viii

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The

VI Amendment

which

states,

"that in all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall

have previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for

his defense."

The XIV Amendment which states, "that all persons born or

naturalized in the United States, and subject to the jurisdiction

thereof; are citizens of the United States and of the State

wherein they reside.

No State shall make or enforce any law

which abridges the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws."

STATEMENT OF THE CASE

The Miranda Hearing

At a Miranda hearing before trial, the Court heard testimony

from Sergeant Frederick D'Ascentis of the Burlington County

Prosecutor's Office, Major Crimes Unit, who had taken an oral

statement and an audio tape-recorded statement from Petitioner

following his arrest on the morning of October 26, 2001.

D'Ascentis testified that he brought Petitioner from the holding

cell, where he had been asleep, to the interview room, and

advised him of his Miranda rights. D'Ascentis informed Petitioner

that Picket Durham was in the hospital and that in a 911 call

Durham had named Petitioner as the assailant that had stabbed him

in the back. D'Ascentis asked the Petitioner if he had any

response, and the Petitioner gave an oral account of what had

happened in the apartment the previous evening.

Petitioner stated he had gotten home from work early, and

had two or three beers and five or six shots of liquor at his

brother's house before goingback to the apartment that he shared

with Durham.Once home, Petitioner decided he wanted to buy some

crack and went out and bought $80 worth. After using the drug, he

decided he wanted to buy more and was able to obtaina ride back

to his apartment from his friend, Mike. When Petitioner entered

the apartment, he thought Durham would be asleep, but he was not.

Petitioner and Durham argued. Petitioner went to the kitchen,

picked up a knife, and returned to the bedroom where he stabbed

Durham in the left side. Petitioner took Durham's pants, looking

for his wallet, and went back outside to the car. Once outside,

Petitioner threw away the knife, told the guys in the car to

leave, and walked around to the back of the building where he

threw the wallet down as well.

After taking this oral statement, D'Ascentis told Petitioner

he wanted to make a recorded statement and Petitioner agreed to

do so. Petitioner repeated his account of the evening, which was

recorded by D'Ascentis. Although Petitioner told D'Ascentis

during the int erview that he had been drinking and smoking crack,

Petitioner did not appear incoherent to D'Ascentis, who stated

that Petitioner "was able to articulate the entire time that I

was with him. He was very cooperative."

After hearing D'Ascentis's testimony, the trial court found

that Petitioner had been advised of his Miranda rights, that he

waived them, and that the statements he gave would be admissible

at trial. Another statement which Petitioner later gave to

Detective Anthony DiLoroeto of the Lumberton Police Department on

November 5, 2001, was also found to be admissible.

-I

A summary of the relevant facts was presented through

testimony at trial as set forth below:

Petitioner killed Pickett Durham, who was fifty-seven years

old and medically fragile. Durham suffered from heart disease,

diabetes, successfully treated prostate cancer, and a

transplanted kidney. Just prior to Durham's death, Petitioner was

living in an apartment with him and his niece, who was

Petitioner's girlfriend. On October 25, 2001, Petitioner had been

out drinking and smoking crack cocaine. He returned to the

apartment hoping to steal Durham's money to purchase more crack.

A verbal altercation ensued, and Petitioner stabbed Durham in the

back with a ten-inch kitchen knife. Petitioner then stole

Durham's jeans, because he believed that Durham's wallet,

containing the money he was looking for, was in them.

Durham called 911 'and told the dispatcher that Petitioner

had stabbed him. Paramedics and police officers from Mount Holly

and Lumberton responded. After Durham was stabilized, paramedics

transported him to Cooper Hospital Trama Center. As one of the

Officers was leaving the scene, he noticed Petitioner in the back

of the building attempting to hide. Petitioner was arrested and

brought to headquarters.

Later, a sergeant and detective awoke Petitioner and brought

him from his cell to the interview room in order to talk with

him. As the sergeant escorted Petitioner, he noticed that

Petitioner was able to walk without assistance and that his eyes

were not bloodshot or glassy. He did not appear to be drunk or

under the influence of any substance. The officers provided

Petitioner with a blanket and coffee.

The sergeant advised Petitioner of his constitutional rights

and Petitioner signed the Miranda card waiving those rights.

Petitioner articulately answered all questions and admitted

stabbing Durham in the back. Petitioner also disclosed the

location of the wallet, knife, and jeans. Petitioner then agreed

to have his statement audio taped. At no time during the

interview did Petitioner request the assistance of counsel or

request that the interview be discontinued.

Meanwhile, a doctor in the hospital performed surgery on

Durham to stop the bleeding, repair the holes in his colon and

diaphragm, re-expand his lung, and wash his abdomen in an attempt

to remove fecal material from the area. The next day, Durham

experienced breathing problems which required that he be placed

on a respirator. That evening, Durham suffered a heart attack.

The doctors suspected that Durham had a blood clot on his lung.

The hospital moved him to Intensive Care where he began to suffer

from peritonitis, which was caused by the "spillage" of fecal

matter from his colon into the abdominal cavity. Durham's

condition deteriorated and several days later, pursuant to his

wishes, the hospital removed him from life-support. He died

within forty minutes.

With respect to the sequence of events, it should be noted

that, as stated by the Court, "[a] verbal altercation ensued, and

Petitioner stabbed Durham in the back with a ten-inch kitchen

knife. Petitioner then stole Durham's jeans.." In other words,

the theft of the wallet and pants followed the argument and

stabbing. The evidence did not necessarily reflect that

Petitioner used the knife in the course of robbing Durham of his

property.

Lieutenant Nagle of the Lumberton Police Department

testified at trial that he was the shift commander on the night

of October 26, 2001, when he responded to the reported stabbing

at the Lumberton Independent Living Campus. Upon arriving at the

scene, he was updated by the other officers who were already

there, and then entered the apartment and spoke with the victim.

Nagle said that Durham was seated in a chair, covered in blood

and in obvious pain. According to Nagle, he asked Durham what

happened and Durham "struggled as he spoke to me and he had been

robbed." Nagle did not question Durham further in view of his

injury. Defense counsel did not object to Nagle's statement "he

had been robbed" as based on hearsay.

During the trial testimony of Delores Durham, the victim's

sister-in-law, the court allowed the prosecutor over defense

counsel's objection to elicit hearsay testimony in which Ms.

Durham imitated Picket Durham's gasping voice as he spoke his

last words to her on his hospital bed:

Redirect by Prosecutor:

Q. One thing you did indicate, there was a

time when Russell was there in his bed and he

was gasping and

talking to you.

A. Yes.

Q. What did he say to you?

[Defense Counsel]: Objection. Your Honor,

with regard to the scope of redirect. This is

with regard

The Court: Mr. Gerrow?

[The Prosecutor]: Judge, she brought it up. I

have, I believe, the right to inquire as to

what he said to her.

that

I agree with you. She

The Court: I

was in response to a direct question on

cross-examination. Objection is overruled.

Q. What did he say to you?

A. He

I went in and I said, Russell? And he

looked around and

very distant, and he

said, Dee Dee? And I said, Russell, I'm here.

It's okay. And I took his hand and I said who

what Happened? And he said (imitating

gasping voice) he

he stabbed me, as he

said (imitating gasping voice) D

Derek.

And I said Derek Sample? And he said,

(imitating gasping voice) yes

yes

yeah.

And he was

I said, Russell, it's okay.

Stop, because I want you to just

relax.

Just relax. I said, Russell, you concentrate

on getting better. And I was rubbing his hand

and the nurse was there and I was trying to

relax him and I said, I'll handle this. He

said (imitating gasping voice) o

okay.

And that's the last he spoke to me.

Although defense counsel objected to this testimony, the

trial court overruled her objection on the grounds that during

cross-examination defense counsel had first asked a question

about what the victim said to the witness. The issue was not

raised by appellate counsel on appeal, and was therefore not

addressed in the Appellate Division's opinion.

In other significant testimony, Michael Covington, the

acquaintance who drove Petitioner back to his apartment where the

stabbing occurred, testified that he was asked by a friend, Mike

Gaston, to give Petitioner a ride to his apartment and that he

asked for a few dollars for gas money. He drove Petitioner to the

apartment and expected him to come back out with a few dollars

for taking him there, and when Petitioner returned to the car, he

was searching through the wallet, Petitioner "was frustrated or

annoyed, that there was no money in the wallet." On crossexamination, the court precluded defense counsel from inquiring

of Covington as to Petitioner's apparent emotional state, on the

grounds that it called for speculation. Nevertheless, in his

closing statement, the prosecutor pointed to Covington's

speculative testimony to show that Petitioner was angry because

he did not find any money in the wallet.

The prosecution' also introduced evidence of prior wrongs

committed by Petitioner through' the testimony of Sergeant

D'Ascentis and the tape-recorded statement of Petitioner. In the

statement, Petitioner related that there had been a prior

occasion, about two months before the stabbing, when he had taken

money from Durham to use for drugs and had paid Durham back:

Q. Had you taken money before?

A. We had an incident. I guess maybe two

months ago. And I that was my first real

downfall messin with crack again and I had

taken three hundred and something dollars,

one night. And you know the next day we

talked about it. And I paid him back the

money, you know, I, apologized to him. But at

times he gave me a rough way to go about it.

I don't know, I guess I had a little bit of

animosity towards that. Because I felt that

rather then treat someone like that he

could've just, he could've told me that I

couldn't stay there. You know, and not just

want to take his frustration out sometimes on

me. But yeah I had taken money from him

before.

Q. And the money that you took before was it

because of your addiction?

A. Yes.

Although the court had ruled the statement admissible in

that there had been no violation of Petitioner's Miranda rights

in taking it, defense counsel did not seek redaction of those

parts of the statement which related to prior wrongs or other

crimes of Petitioner.

In addition to this testimony with respect to prior drug use

and prior incident in which Petitioner had taken money from

Durham, there was also testimony that indicated Petitioner had

prior involvement with the police. Sergeant Thomas Mastrangelo

testified that when he was on patrol and received a dispatch

concerning a stabbing in Lumberton, he responded to provide

assistance. While he was driving around the apartment building,

he saw a person standing in the shadows close to the back of the

building. When he exited his vehicle and approached with his

flashlight, he realized that he recognized the individual, but

was not sure who he was. Petitioner looked at Mastrangelo and

said, "Strang, you know me, it's Derek, Derek Sample."

Recognizing Petitioner's name as the suspect identified in the

dispatch, Mastrangelo drew his gun, ordered Petitioner to the

ground, and placed him under arrest. This testimony by

Mastrangelo reflected that Petitioner had occasion to know the

officer by his "street" name.

At the conclusion of the testimony at trial, the court held

a charge conference. However, due to an apparent mix-up in

setting up transportation for Petition, who was in the State's

custody, Petitioner was not produced. Defense counsel waived

Petitioner's appearance. Accordingly, the court conducted the

charge conference without Petitioner present.

In charging the jury, the court provided an instruction on

first and second degree robbery, but did not provide an

instruction on theft as a lesser included offense of robbery,

despite evidence from which the jury could have conducted that

the stabbing and the theft of the wallet and pants were separate

events. The court gave an instruction on first degree aggravated

manslaughter, but did not give an instruction on second degree

reckless manslaughter. Among other charges, the jury found

Petitioner guilty of first degree armed robbery.

In support of his arguments with respect to sentencing,

defense counsel presented the court with the expert report of Dr.

Robert L. Sadoff, M.D., a psychiatrist who had examined

Petitioner before trial. In his report, Dr. Sadoff concluded that

although Petitioner was not legally insane at the timers of the

offense, he "lacked substantial capacity to control his behavior

because of the intoxication with cocaine and alcohol." Despite

having offered this opinion prior to trial, Dr. Sadoff was not

called by defense counsel to' testify at trial in support of a

diminished capacity defense.

The jury, however, found petitioner guilty of all charged

offenses. Thereafter on December 3, 2004, petitioner was

sentenced to an aggregate sentence of 45 years with an 85% parole

disqualifier pursuant to the No Early Release Act.

On July 15, 2015, Petitioner filed a petition for a writ of

habeas corpus. The petition raised seven grounds: GROUND ONE:

PETITIONER'S TRIAL WAS WRONGFULLY TAINTED BY THE ADMISSION OF

INFLAMMATORY AND UNDULY PREJUDICIAL EVIDENCE, IN VIOLATION OF HIS

RIGHTS TO A FAIR TRIAL A GUARANTEED UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, (a)

Error in Admission of Hearsay Statements and Manner in Which it

was Presented, (b) Error in Admission of Hearsay Through

Lieutenant Alfred Nagle, (c) Error In Admission of Other-Crimes

Evidence, (1) Alleged Prior Theft from Russell Durham, (2) Prior

Drug Use, (d) Error in Admission of Hearsay and Conclusion by

Michael Covington; GROUND TWO: THE TRIAL JUDGE'S FAILURE TO

INSTRUCT THE JURY ON RECKLESS MANSLAUGHTER AS A LESSER-INCLUDED

OFFENSE OF MURDER, AND FAILURE TO INSTRUCT THE JURY ON THEFT AS A

LESSER-INCLUDED OFFENSES TO ROBBERY WAS PLAIN ERROR, (a) The

Trial Judge's Failure to Instruct the Jury on Reckless

Manslaughter as a Lesser Included Offense of Murder was

Reversible Plain Error in Light of the Clear Mandate from the New

Jersey Supreme Court in State v. Jenkins, 178 N.J. 347 (2004),

(b) The Trial Judge's Failure to Instruct the Jury on Theft as a

Lesser Included Offense of Robbery was Plain Error; GROUND THREE:

PETITIONER'S RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL WAS

VIOLATED AS RESULT OF HIS TRIAL COUNSEL'S FAILURE TO OBJECT TO

EVIDENCE OF PRIOR WRONGS THAT WAS INCLUDED IN PETITIONER'S

STATEMENT TO THE POLICE; GROUND FOUR: PETITIONER'S RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS RESULT OF HIS

DEFENSE COUNSEL'S FAILURE TO PROTECT PETITIONER'S RIGHT TO BE

PRESENT AT ALL CRITICAL PHASES OF HIS TRIAL; GROUND FIVE:

PETITIONER'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS

VIOLATED AS RESULT OF HIS TRIAL COUNSEL'S FAILURE TO PURSUE A

DEFENSE OF DIMINISHED CAPACITY AS SUPPORTED BY THE EXPERT REPORT

OF DR. SADOFF; GROUND

SIX:

PETITIONER'S RIGHT TO EFFECTIVE

ASSISTANCE OF APPELLATE COUNSEL WAS VIOLATED; GROUND SEVEN: THE

CUMULATION OF ERRORS DEPRIVED PETITIONER OF DUE PROCESS.

The district court denied the petition for a writ of habeas

corpus. Sample v. D'Ilio, No. 15-05487 (RBK), slip opinion (June

14, 2018)

Petitioner filed a timely notice of appeal and a

petition for a certificate of appealability (COA)

On November

14, 2018, the Third Circuit denied the petition for a COA. On

December 14, 2018, the Third Circuit denied a petition for

rehearing and rehearing en banc.

REASONS WHY CERTIORARI

SHOULD BE GRANTED

Point I

The District Court Erred in Refusing to Issue

Certificate

Appealability

Petitioner's Claim that His Trial Counsel was

Ineffective, and the Third Circuit's Decision

to Affirm is Likewise Erroneous.

In order to obtain a certificate of appealability (COA), a

petitioner need only demonstrate "a substantial showing of the

denial of a constitutional right."

28 U.S.C. 2253(c) (2).

petitioner satisfies this standard by demonstrating that jurists

of reason could disagree with the district court's resolution of

his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed

further.

Slack v. McDaniel, 529 U.S. 478, 120 S. Ct. 1595, 146

L. Ed. 2d 542 (2000)

The well-known standard of Strickland v. Washington governs

this claim. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Under this standard, petitioner must show that trial counsel's

performance was deficient and the deficient performance

prejudiced the defense.

In order to prevail on a claim of ineffective assistance of

counsel, petitioner must meet the two-prong test of establishing

both that: (1) counsel's performance was deficient and he or she

made errors that were so serious that counsel was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; (2) the defect in performance prejudiced

petitioner's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068.

See also, State v. Loftin, 191 N.J. 172, 198 (2007); accord

State v. Allegro, 193 N.J. 352, 366-67 (2008); State v. Castagna,

187 N.J. 293, 314-15 (2006)

The benchmark for judging ineffective assistance of counsel

claims is whether counsel's conduct changed the outcome of the

trial. Strickland, supra; United States v. Cronic, 466 U.S. 648

(1984); Fritz, supra, adopting the Strickland and Cronic

standard.

The Petitioner contended that counsel was ineffective for

failing to challenge the admissibility of the statement under the

proper legal standards and principles of law by failing to object

or having the statement redacted as it presented other-crimes

from the Petitioner through the testimony of Sgt. D'Ascentis and

Sgt. Mastrangelo.

In Kirnmelman v. Morrison, 477 U.S. 365, 106 S.Ct 2574, 91

L.Ed.2d 305 (1986), the Court reviewed defendant's Sixth

Amendment claim of ineffective assistance of counsel by failing

to assert a Constitutional Amendment claim.

Referring to its

opinion in Strickland v. Washington, the Court noted that:

In order to prevail the defendant must show

both that counsel's representation fell

objective

standard

below

reasonableness, Strickland, 466 U.S. at 688,

80 L.Ed.2d 674, 104 S.Ct 2052, and that

there exists a reasonable probability that,

but for counsel's unprofessional errors, the

result of the proceeding would have been

different. Id., at 694, 80 L.Ed.2d 674, 104

S.Ct 2052. Where defense counsel's failure

to litigate a Fourth Amendment claim is

meritorious and that the 'verdict would have

been different absent the excludable

evidence in order to demonstrate actual

prejudice. [Emphasis supplied.]

In the Petitioner's case the information presented had no

relevance to any issue in the trial and any reasonably competent

counsel would have moved to suppress the statement or have any

incriminating parts unrelated to the trial redacted as being

prejudicial and a violation of the Petitioner's due process.

Such a Motion to Suppress based on the above grounds, which

was clearly revealed on the record "would have been successful

and there is no conceivable strategy that would justify failing

to file a Motion to suppress. Thus, the first prong of the

Strickland test is satisfied. State v. Allah, 334 N.J. Super 516,

528-529 (App. Div. 2000)

The U.S. Constitution, and counsel's failure to move for

suppression based on those claims resulted in a deficient

performance. Moore v. United States, 432 F.2d 730 (3rd Cir. 1970)

Prejudice is a foregoing conclusion.

The second prong requires proof that the attorney's failure

deprived defendant of a fair trial in the sense that the result

was unreliable. In Kimmelman v. Morrison, 477 U.S. 365, 375, 106

S.Ct. 2574, 2583, 91 L.Ed.2d 305, 319 (1986), the Court held that

a conviction would be considered unreliable under Strickland if

there was an unjustifiable failure to litigate a meritorious

Amendment claim and "there is a reasonable probability that the

verdict would have been different absent the excludable evidence.

The Supreme Court of New Jersey reached the same

conclusion in State v. Fisher, supra, [State v. Allah, 334 N.J.

Super 516, 528-529 (App. Div. 2000) and as such, a reasonable

jurists could disagree with the district court's decision on this

issue and as such a petition for a writ of certiorari should be

granted in the interest of justice.

The district court offered no analysis to support its

ultimate conclusion that petitioner had failed to demonstrate

that the state court's decision was contrary to or involved an

unreasonable application of clearly established federal law. The

district court simply noted there was substantial evidence of

Petitioner's guilt. Sample v. D'Ilio, supra, at 12. But the

district court failed to offer any analysis of its own on the

merits of petitioner's claim and failed to offer its reasons for

concluding that the state court had rejected petitioner's claim

on the merits.

Point II

Reasonable Jurists Could Disagree with the

District Court's Ruling that the Petitioner

Right to Effective Assistance of Counsel was

Violated as Result of His Trial Counsel's

Failure to Protect His Right to be Present at

All Critical Phases of Trial.

The Sixth Amendment guarantees an accused the assistance of

counsel not just at trial, but whenever it is necessary to assure

a meaningful defense. United States v. Wade, 388 U.S. 218, 225,

87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967)

As the Supreme

Court has stated:

A person accused of a crime "requires

the guiding hand of counsel at every step in

the proceedings against him," Powell v.

Alabama, 287 U.S. 45, 69 [53 S.Ct. 55, 64, 77

L.Ed. 1581 (1932), and

that

constitutional principle is not limited to

the presence of counsel at trial.

"It is

central to the principle that in addition to

counsel's presence at trial, the accused

is guaranteed that he need not stand alone

at any stage of the prosecution, formal or

informal, in court or out, where counsel's

absence might derogate from the accused's

right to a fair trial." United States v.

Wade, supra, at 226, 87 S.Ct. at 1932.

Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct 1999, 2002, 26

L.Ed.2d 387 (1970)

Thus, recognizing that "the period from

arraignment to trial [is] perhaps the most critical period of

the proceedings," Wade, 388 U.S. at 225, 87 S.Ct at 1931,

involving "critical confrontations of the accused by the

prosecution at pretrial proceedings where the results might well

settle the accused fate and reduce the trial itself to a mere

formality," Id. at 224, 87 S.Ct at 1931, the Court has held that

the Sixth Amendment right to counsel applies to all such

"critical" stages.

Coleman, 399 U.S. at 7, 90 S.Ct at 2002;

Wade, 388 U.S. at 224, 87 S.Ct at 1930.

A critical stage is one where potential substantial

prejudice to defendant's rights inheres in the particular

confrontation and where counsel's abilities can help avoid that

prejudice.

Coleman, 399 U.S. at 9, 90 S.Ct. at 2003.

Such

confrontations include, for example, the indictment, arraignment,

and [suppression hearing], Kirby v. Illinois, 406 U.S. 682, 689,

92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)

The Petitioner in the case at bar, was denied his Sixth

Amendment right to effective assistance of counsel at a critical

stage of the proceedings, when trial counsel improperly waived

the Petitioner's presence at the charge conference. As explained

in Rule 2:10-2 (1948) (current version at R. 3:16 states:

The defendant shall be present at every

stage of the trial, including the impaneling

of the jury and the return of the verdict,

and at the imposition of sentence, unless

otherwise provided by Rule. Nothing in this

Rule, however, 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. Ibid.

In the case at bar, the State rested its case and defense

counsel moved to dismiss the "charges" pursuant to R. 3:18-1.

Following the denial of the motion to dismiss, the trial judge

informed, both the State and defense, that he wanted counsel to

submit all requests for "any of the non-substantive offense

charges that are requested." The judge further instructed

counsel: "I'll need those tomorrow morning."

Prior to receiving testimony for the defense, the trial

judge placed on the record that: "counsel and the Court have met

this morning first to go over possible jury instructions. And we

will probably be doing the charge conference tomorrow afternoon

on the record."

On September 24, 2004, the trial judge did, in fact, hold a

charge conference. However, the Petitioner still in the custody

of the State for his inability to post bail, was not produced in

court for this scheduled event. Apparently there was some mix up

between transportation and scheduling.

Then, for unexplained

reasons, defense counsel waived Petitioner's appearance.

There is no indication in the record of any finding by the

trial judge of good cause for Petitioner's absence, nor a valid

waiver by the Petitioner.

Instead, immediately before closing

arguments, presented on September 28, 2004, the court had defense

counsel restate her waiver of Petitioner's rights.

THE COURT: Okay. There is one matter that,

Ms. Pacheco, you need to take care of, and

then we'll go through the

anything

further on the charges.

MS. PACHECO: Thank you, Your Honor. As the

Court will recall, we had a charge

conference on the record last Friday, and

for whatever reason, my client wasn't able

I waived my client's

to be in attendance.

appearance for the purpose of that charge

conference. (liT 3 to 19)

There is no question, Petitioner was not produced for this

scheduled event and critical stage of the trial. Petitioner did

not waive his right to be present and, neither defense counsel

nor the trial judge had the right to abrogate Petitioner's right

to be present, simply because the State failed to produce

Petitioner on time.

The prejudice to Petitioner was twofold: First, Petitioner

was denied the opportunity to request, or secure, instructions on

the lesser-included offenses were given to the jury; and Second,

Petitioner was denied the right to have the trial judge state his

findings and reasons on the record, for not giving lesserincluded offense instructions for meaningful appellate review.

Petitioner's failure to raise his objection is attributed to

the fact that defense counsel assured him that "the judge was

charging lesser-included offenses."

Also in State v. Whaley, 168 N.J. 94, 99-100 (2001) the New

Jersey Supreme Court held:

"The United States and New Jersey

Constitutions guarantee criminal defendants

the right to confront witnesses against them.

U.S. Const. Amend. VI; N.J. Const. Art. I,

An essential of the guarantee is the

9110.

right of the accused to be present in the

courtroom at every stage of the trial.

Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct

1057, 1058, 2 L.Ed.2d 353, 356 (1970) (citing

Lewis v. United States, 146 U.S. 370, 13 S.Ct

136, 36 L.Ed 1011 (1892); State v. Hudson,

119 N.J. 165, 171, 574 A.2d 434 (1990); State

v. Smith, 29 N.J. 561, 578, 150 A.2d 769,

cert. denied, 361 U.S. 861, 8 S.Ct 120, 4

A criminal defendant's

L.Ed.2d 103 (1959)

right to be present at trial also is a

condition of the Due Process Clause of the

Fourteenth Amendment to the extent that a

defendant's absence would hinder a fair and

just hearing.

Hudson, supra, 119 N.J. at

171, 574 A.2d 434 (citing Snyder V.

Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct

330, 333, 78 L.Ed 674, 679 (1934), overruled

on other grounds, Duncan v. Louisiana, 391

U.S. 145, 88 S.Ct 1444, 20 L.Ed.2d 491

(1968)

Therefore, the State Court's and the District Court's

rulings was contrary to Supreme Court rulings and the

Petitioner's constitutional right to be present at every stage,

which denied him the opportunity to request the lesser-included

offense to be charged and violated his right to Due process and a

Fair Trial and as such, reasonable jurists could disagree with

the district court's decision.

Point III

Reasonable Jurists Could Disagree with the

District Court's Ruling that The Trial Court

did not Wrongfully Taint the Petitioner's

Trial by the Admission of Inflammatory and

Unduly Prejudicial Evidence that did not

Violated His Constitutional Rights to a Fair

Trial by an Impartial Jury.

In order to be admissible under Fed. R. Evid. 404(b), (1)

the evidence must have a proper purpose under Rule 404(b); (2) it

must be relevant under Fed. R. Evid. 402; (3) its probative value

must outweigh its potential for unfair prejudicial effect under

Fed. R. Evid. 403; and (4) the court must charge the jury to

consider the evidence only for the limited purpose for which it

is admitted.

Under Fed. R. Evid. 404(b), the admission of other acts

evidence for the purpose of showing that an individual has a

propensity or disposition to act in a particular manner is

prohibited and the Federal Rules of Evidence are clear and

unambiguous: irrelevant and prejudicial evidence is inadmissible

and the Petitioner's due process rights were violated when the

trial court allowed: (1) the victim's sister-in-law to take the

witness stand and re-enact the victim's dramatic last words to

her, as she imitated the victim's gasping voice.

In State v. Kelly, 97 N.J. 178 (1984) it states: evidence

may be excluded as unduly prejudicial when its "'probative value

is so significantly outweighed by its inherently inflammatory

potential as to have a probable capacity to divert the minds of

the jurors from a reasonable and fair evaluation' of the issues

in the case.

This aspect of testimony was entirety gratuitous and should

not have been permitted by the trial court.

It is also argued that inadmissible evidence and highly

inflammatory statements came rolling in unimpeded at Petitioner's

trial, without any hesitation by the prosecutor, complaint by

defense counsel, or correction by the District Court. Indeed, at

only one point when irrelevant but enormously prejudicial

evidence and wholly inappropriate statements came before the jury

did defense counsel object, and that objection was not at all

specific. His failure to object, of course, did not relieve the

prosecutor of his duty to comply with the Federal Rules of

Evidence and, even more importantly, rules of fundamental

fairness.

In Himelwright, although operating under an abuse of

discretion standard of review, the conviction was reversed due

to concerns that the government's emphasis on 404(b) evidence in

its closing argument tainted the trial in two regards: "First, it

had the potential for frightening the jury into ignoring evidence

that otherwise might have raised a reasonable doubt

Second, if the jury was persuaded that [the defendant] was

violence-prone by character, it might have inferred that he

intended violence in this particular instance. That inference is

precisely what Rule 404(b) prohibits." Himelwright, 42 F.3d at

786 n.8. See also United States v. Morley, 199 F.3d 129, 137-38

(3d Cir. 1999) ("This frontal assault upon the defendant's

character is simply not appropriate under our system of laws, and

the trial court abused its discretion in admitting it."). Plain

error was committed here in the Petitioner's case as well.

(2) Petitioner also argued before the district court that the

admission of Hearsay testimony through Lieutenant Alfred Nagle

was prejudicial and violated his right to fair trial.

The trial court's admission of the testimony Lt. Nagle under

the excited utterance exception was an abuse of discretion when

N.J.R.E.

803

states,

"[a]n excited utterance is a

statement relating to a startling event or condition made while

the declarant was under the stress of excitement caused by the

event or condition and without opportunity to deliberate or

fabricate."

In the Petitioner's case Lt. Nagle, who at the time of the

incident was a Sergeant and night shift commander with the

Lumberton Township Police Department testified that he "responded

to a call of a stabbing at 509 Independence Drive." Upon his

arrival, he was approached by one of his officers and told "that

a stabbing had taken place and that a suspect had been taken into

custody and was secured in dne of the patrol cars[,]" and that a

"wallet had been secured behind the 500 building." At trial, Lt.

Nagle recounted his observations upon entering the residence, the

following colloquy took place:

and what were your observations when you

when you went inside?

A. I located the victim who was seated in a

chair just outside the kitchen. He was

covered with blood on his back, his chest,

his arms, hands. His t-shirt, whidh looked

like it had been cut off his body by

paramedics was draped across his right thigh

and was blood soaked.

He was in obvious

pain. There was a transparent patch on his

back on his left side that 'I could see

through and I could see it looked like to be

a stab wound.

I did ask him what happened

and he struggled as he spoke to me and he

had been robbed.

Q. And after he had indicated that to you,

by the way, this was Pickett Russell Durham;

was it not?

A. Yes, sir, Mr. Durham.

Q. After Mr. Durham indicated that to you,

that he was robbed, what

what did you do

then? What was your

A. He

he appeared to be in such shape

that didn't want to continue questioning

him. I just

I said, "okay, sir. We'll

get you some medical attention and get you

some help." But I didn't question him after

that. (7T 57-1 to 23)

The statement by Lt. Nagle, "he had been robbed," is clearly

hearsay and was offered to prove the truth of the matter

asserted. The prosecutor argued as much in closing:

"And you know Sergeant Nagle, now Lieutenant

Nagle, come in and, well, he had to put

words in Russell Durham's mouth. He doesn't

have to put words in Russell Durham's mouth.

Forget about what Russell Durham said to

Sergeant Nagle, that he was robbed.

Robbery, right there." (liT 43-17 to 22).

Therefore, the trial court erred because the testimony •does

not fit within the scope of this exception. See State v. Long,

173 N.J. 138, 152 (2002); see also State v. Cotto, 182 N.J. 316,

328 (2005)

(3)

Petitioner also argued before the district court that the

trial court violated his due process by admitting several

instances of prior bad acts.

The State's Court has frequently enunciated the general rule

that evidence of a defendant's prior criminal acts may not be

introduced to prove guilt of the offense for which the defendant

is on trial.

Therefore, "in a prosecution for a particular crime,

evidence which in any manner shows or tends to show that the

accused has committed another crime wholly independent of that

for which he is on trial, even though it be a crime of the same

type, is

...

inadmissible."

Clearly, in the Petitioner's case the testimony by Frederick

D'Ascentis, a State's witness presented a prior instance of

other-crimes-evidence, which prejudiced the defendant's rights to

a fair trial and a reliable verdict.

The State through its witness D'Ascentis, was allowed to

introduce a prior instance of inadmissible and highly prejudicial

other-crimes-evidence that the defendant possessed and used

drugs.

These instances Of other-crimes-evidence were unrelated to

the offenses for which the defendant was on trial, nor was there

any independent proof of D'Ascentis' word that these other crimes

instances actually happened as D'Ascentis alleged.

The other-crimes-evidence was clearly inadmissible under New

Jersey State Court precedent, and the United States Constitution,

and there is no justifiable explanation that could excuse trial

counsel's failure to move to bar the numerous instances of othercrimes-evidence.

Whether the other-crimes-evidence be viewed individually, or

together, the prejudicial enormity of the cumulative effect of

this otherwise inadmissible evidence cannot be denied.

The reasons for this general exclusionary rule [of othercrimes-evidence, is] well documented:

"There are two reasons for the rule. First,

if a jury considers a defendant's prior

criminal activity, it may decide to convict

and punish him for having a criminal

disposition. Second, a jury might infer that

because the defendant has committed crimes in

the past, he is more likely to have committed

the crime for which he is being tried."

See also Terry, supra, 332 Md. at 334, 631 A.2d 424 (other

crimes evidence "is excluded because it may tend to confuse the

jurors, predispose them to a belief in the defendant's guilt, or

prejudice their minds against the defendant")

Not only did trial judge fail in his duty to exclude the

other-crimes-evidence, but the trial judge also failed to give a

special jury instruction to disregard the said evidence or how

best to deal with such evidence.

There was no evidentiary hearing had before the introduction

of any of the instances of the other-crimes-evidence, for the

possession and use of drugs, in the stabbing incident at

Russell's. There also was no corroborative evidence that any of

these incidents even occurred except for the word of the State's

own witness, D'Ascentis, himself.

Trial counsel also failed to bring to the trial court's

attention, the fact that the trial court equally erred by failing

to hold an evidentiary hearing before allowing the State to

introduce the other-crimes-evidence. As a result of trial

counsel's deficient representation, the State was able to utilize

this otherwise inadmissible evidence in its closing summations to

the jury, thereby, prejudicing the defendant enormously.

The State did not seek to introduce this other-crimesevidence for any possible legitimate purposes, other than to

confuse the jurors, predispose them to a belief in the

defendant's guilt, or prejudice their minds against the

defendant.

The prejudice the defendant suffered from the other-crimesevidence is inescapable, and there is no justifiable explanation

that could explain away trial counsel's woefully deficient acts.

Because the other-crimes-evidence would not have been

admissible under the above standard, since the other-crimes could

not be established to have even happened, by clear and convincing

evidence.

The probative value was clearly outweighed by the

prejudicial nature of the admission of the other-crimes-evidence.

It is highly unlikely that the other-crimes-evidence would have

been admissible whether as individual acts or the multiple acts

that were however introduced into the trial of the Petitioner.

Also, during the Petitioner's trial Sergeant Nastrangelo was

permitted to testify "Hey strange, it's me Derek, Derek Sample."

By implication even this testimony was truthful, the jury

was permitted to hear not only was the Petitioner familiar with

law enforcement officers, he knew them by their "street names,"

and thus he must be guilty.

In the Petitioner's case, there was no limiting instruction

after Sgt. Mastrangelo was permitted to testify as to his

familiarity with the Petitioner. As stated, other-crime evidence

is only admissible if relevant t prove some other fact genuinely

in issue. State v. Marrero, 148 N.J. 469, 691 A.2d 293 (1997)

A four-part test has been distilled and designed to "avoid

the over-use of extrinsic evidence of other crimes or wrongs."

That test is:

1. The evidence of the other crime must be

admissible as relevant to a material issue;

It must be similar , in kind an reasonably

close in time to the offense charged;

The evidence of the other crime must be

clear and convincing; and

The probative value of the evidence must

not be outweighed by its apparent prejudice.

The trial court's allowance of the Sgt. Mastrangelo's

testimony before the jury as to the mutual-awareness of Sgt.

Mastrangelo and the Petitioner does not remotely pass this test.

Therefore, the Petitioner's due process and a fair trial was

violated; due to there is no way to determine whether the jury

placed weight on the "other crimes" testimony.

As such, the

State Court's and the District Court's rulings was contrary to

Alk r

Supreme Court rulings and reasonable jurists could disagree with

the district court's decision.

", 0 S

Point IV

Reasonable Jurists Could Disagree with the

District Court's Ruling that The Trial's

Judge Failure to Instruct the Jury on

Reckless Manslaughter as a Lesser-Included

Offense of Murder, and Failure to Instruct

the Jury on Theft as a Lesser-Included

Offense to Robbery was Plain Error.

The Petitioner argued before the district court that it is

well established that a trial judge is required to instruct the

jury on a lesser-included offense if "the-evidence presents a

rational basis on which the jury could acquit the, defendant of

the greater charge and convict the defendant on the lesser."

State v. Brent, 137 N.J. 107, 117 (1994)

In Jenkins, the evidence showed that the defendant struck

the victim in the head with a brick, which caused him to fall

down a flight of stairs, hit his head on the pavement and die.

The Court ruled that the jury could have concluded that the

defendant hit the victim without conscious knowledge that death

was a high probability, but with reckless disregard of whether

death was a possibility or probability.

178 N.J. at 363.

The

Court further held: "expert testimony that it was not defendant's

blow but rather the subsequent fall to pavement that caused

victim's death provided significant support for a conclusion that

defendant consciously disregarded a known risk that created

possibility or probability that death would occur from hfs

conduct."

Id. "That being the case, the trial court was

obligated to instruct on manslaughter and aggravated manslaughter

as well as murder." Id. at 364.

Just as in Jenkins, all the experts in the Petitioner's

case at bar, agreed "that it was not the Petitioner's blow but

rather the subsequent [heart attack] that caused Russell's death

providing significant support for that conclusion inasmuch as the

jury need not have concluded that Petitioner struck Russell

intending or knowing that the blow would cause him to have a

heart attack."

That being the case, the trial judge was

obligated to instruct the jury on manslaughter as well.

Further support on the necessity for a charge on

manslaughter is found in the trial court's agreeing with defense

counsel to give instructions on aggravated assault. (lOT 17-9 to

25).

Also, in Jenkins, the Court pointed out that "the proper

inquiry in distinguishing murder from the two degrees of

manslaughter relates to defendant's state of mind as to the risk

of death." Id. Since the jury could have "reasonably garnered

from the testimony that the cause of death is not attributed to"

Petitioner.

However, the jury was not given that opportunity and

therefore, the Petitioner's due process and a fair trial was

violated; due to the jury could have convicted the Petitioner on

a lesser-degree of murder if charged. As such, the State Court's

and the District Court's rulings was contrary to well established

law and reasonable jurists could disagree with the district

court's decision.

CONCLUSION

For all of the foregoing reasons, this Honorable Court

should grant the petition for a writ of certiorari to determine

whether Petitioner's constitutional rights were violated.

Respectfully submitted,

DATE:

2019

Jerek Sampl

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.