Petition for Writ of Certiorari — Daniel Twian Brown, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.
Supreme Court briefOct 23, 2020
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IN THE
SUPREME COURT OF THE UNITED STATES
No.
DANIEL TWIAN BROWN
Petitioner,
VS.
ADMINISTRATOR NEW JERSEY STATE PRISON, et al/.
Respondent.
St/pre
0CT 23 2020
°£dceof
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
SUBMITTED BY:
Daniel Twian Brown #563081/979139B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
RECEIVED
NOV - 6 ?n?o
supIreEm°Fc'ourtLu.sK
t
f.
QUESTIONS PRESENTED
1.) Whether the Third Circuit Court of Appeals Erred in Denying
Petitioner a Certificate of Appealability on His Claim that His
Warrantless Arrest was not Unlawful and Illegal and in Violation
of the New Jersey and the United States Constitution.
2.) Whether the Third Circuit Court of Appeals Erred in Denying
Petitioner a Certificate of Appealability on His Claim that His
Statements should not Have been Suppressed as His Arrest was
Illegal given the Lack of Both an Arrest and Search Warrant in
Violation of the New Jersey Constitution Article I,
the United States Constitution,
Fourteenth Amendment.
IV Amendment,
Para.
7 and
and
V Amendment
3.) Whether the Third Circuit Court of Appeals Erred in Denying
Petitioner a Certificate of Appealability on His Claim that He
was not Denied Effective Assistance of Trial Counsel.
4.) Whether the Third Circuit Court of Appeals Erred in Denying
Petitioner a Certificate of Appealability on His Claim that He
was not Denied Effective Assistance of Appellate Counsel.
5.) Whether the Third Circuit Court of Appeals Erred in Denying
Petitioner a Certificate of Appealability on His Claim that the
Refusal of the New Jersey Supreme Court to Extend Their Ruling in
to a Fair
State v. W.A. which Violated His Fundamental Right
Trial in Violation of the Sixth Amendment and the Due Process
Clause of the Fourteenth Amendment of the United States
Constitution.
ii
t
TABLE OF CONTENTS
QUESTIONS PRESENTED
ii
LISTED PARTIES
iv
TABLE OF AUTHORITIES
v
OPINIONS BELOW
vi
STATEMENT OF JURISDICTION
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
2
STATEMENT OF THE CASE
4
REASONS FOR GRANTING THE WRIT
6
CONCLUSION
34
iii
*'
LIST OF PARTIES
The Petitioner is Mr. Daniel Twian Brown, acting pro se, and
is a prisoner presently confined at New Jersey State Prison in
Trenton, New Jersey.
The Respondents are Steven Johnson former Administrator of
New
Jersey
State
Prison,
and
the
Office.
iv
Bergen
County
Prosecutor's
TABLE OF AUTHORITIES
Page No
Cases
Brown v.
Illinois,
422 U.S. 590
(1975)
24,25
Brown v. Johnson, No. 16-6066 (JMV), slip opinion
(D.N.J. August 6, 2019)............. ....................................
5
Carroll v. United States, 267 U.S. 132, 156 (1925)
13
Davis v. Sanders, 19 S.E. 138 (S.C. 1894)
20
Gerstein v. Pugh, 420 U.S. 103, 113 (1975)
17
Maryland v. Pringle, 540 U.S. 366 (2003)
6
Payton v. New York, 445 U.S. 573 (1980)
7,18,20
Payton v. New York, 445 U.S. 585 (1980)
7
Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert,
denied 531 U.S. 1146 (2001)....................................................
6, 12
Slack v. McDaniel, 529 U.S. 478, 120 S.Ct 1595, 146
L.Ed.2d 542 (2000).................................................................
27
State v. Barry, 86 N.J. 80 (1981)
25
State v. Basil, 202 N.J. 570 (2010)
6
State v. Bobo, 222 N.J. Super 30,
Div. 1987)...........................................
535 A.2d 983 (App.
12,20
State v. Branch, 301 N.J. Super 307, 321 (App. Div. 1997)
rev'd in part on other grounds, 155 N.J. 317 (1998)....
14
State v. Brown, 2009 N.J. Super Unpub. Lexis 2181,
Div. August 7, 2009)...........................................................
19
(App.
State v. Chippero, 201 N.J. 14, 987 A.2d 555 (2009)
12
852 A.2d 1150
State v. Cleveland, 371 N.J. Super 286,
(App. Div.), certif. denied, 182 N.J. 148, 862 A.2d 57
(2004)..............................................
6
State v. Doyle, 42 N.J. 334 (1964)
17
State v. Frankel, 179 N.J. 586 (2004), cert, denied, 543
U.S. 876 (2004)...................................................................................
20
State v. Gonzalez, 114 N.J. 592 (1989)
21
v
1
TABLE OF AUTHORITIES
Page No
Cases con't
State v. Henry, 133 N.J. 104, 627 A.2d 125, cert, denied,
510 U.S. 984 (1993)............................................................................
7,17
State v. Hutcjins, 116 N.J. 457 (1989)
23
State v. Johnson, 118 N.J. 639 (1990)
25
State v. Kane, 303 N.J. Super 167 182 (App. Div. 1997)...
14
State v. Mann, 203 N.J. 328, 2 A.3d 379 (2010)
7
State v. Miller, 342 N.J. Super 474 (App. Div. 2001)
22
State v. Murphy, 185 N.J. Super 72, 447, A.2d 219 (Law
Div. 1982).........................................................................................
14
State v. Tucker, 136 N.J. 158 (1984)
23
State v. Vanderweaghe, 351 N.J. Super 467 (App. Div. aff'd
177 N.J. 229 (2003)............................................................................
32
Steagald v. United States, 451 U.S. 204 (1981)
6,13,18,22
Strickland v. Washington, 466 U.S. 668 (1986)
27
United States v. Calendra, 414 U.S. 338 (1974)
24
United States v. Evans, 469 F.Supp.2d 893 (D. Mo. 2007)..
20
United States v. Lum, 466 F.Supp 328 (D. Del) aff'd 605
605 F. 2d 1198 (3rd Cir. 1979)....................................................
30
United States v. Watson, 423 U.S. 411, 417 (1976)
United States v. Winston, 447 F.2d 1236, 1240 (D.C. 1971).
31
Wong Sun v. United States, 371 U.S. 471, 482-83 (1963)...
11,21
Rules
R. 3:2-1
7,18
R. 3:2-3
8
R. 3:2-3(a)
8
R. 3:2-3(c)
8
vi
I
*
TABLE OF AUTHORITIES
Page No
Rules con't
R. 3:3-1(a)
8,12,18
R. 7:2-1
7
Rules of Evidence 403
32
Statutes
N.J.S.A. 2B:12-21
8
N.J.S.A. 2C:29-2(a)(2)
14
N.J.S.A. 40A:14-152
13, 17
N.J.S.A. 40A:14-152.1
17
New Jersey Const. Art. I, Para. 10
U.S. Const. IV Amendment
2
U.S. Const. V Amendment
2
U.S. Const. VI Amendment
2
U.S. Const. XIV Amendment
3
28 U.S.C.A. §1254(1)
1
28 U.S.C.A. §2253 (c) (2)
27
vii
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 August 6, 2019.
(See Appendix - Ex-1)
The United States Court Of Appeals
for the Third Circuit
filed an order on January 28, 2020, denying petitioner's petition
for a Certificate of Appealability.
(See Appendix - Ex-51)
The United States Court Of Appeals
filed an order on July 27,
for a rehearing En Banc.
2020,
for the Third Circuit
denying Petitioner's petition
(See Appendix - Ex-52)
viii
!
STATEMENT OF JURISDICTION
The United States
District Court
For the District Of New
Jersey denied petitioner's petition for writ of habeas corpus on
August 6, 2019, and on the United States Court of Appeals for the
Third
Circuit
filed
an
order
on
January
28,
2020,
denying
petitioner's petition for a Certificate of Appealability and a
petition for a rehearing En Banc were denied on July 29, 2020.
This Court has jurisdiction under 28 U.S.C. §1254(1) to
review the circuit court's decisions on a writ of certiorari.
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The IV Amendment which states,
"the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath
or
affirmation,
and
particularly
describing
the
place
to
be
searched, and the persons or things to be seized."
The V Amendment which states,
answer for a capital,
presentment
or
"no person shall be held to
or otherwise infamous crime,
indictment
of
a
Grand
Jury,
unless on a
except
in
cases
arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger;
nor shall any
person
twice
be
subject
for
the
same
offence
to
be
put
in
jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself,
liberty,
or
property,
private
property
be
nor be deprived of life,
without
due
process
of
law;
taken
for
public
use,
which
states,
nor
shall
without
just
compensation."
The
VI
Amendment
"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."
2
The XIV Amendment which states,
"that all persons born or
naturalized in the United States, and subject to the jurisdiction
thereof,
are
citizens
wherein they reside.
of
the
United
States
and
of
the
State
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."
3
STATEMENT OF THE CASE
On April 29, 2005, A grand jury in Bergen County returned a
forty-three count indictment against Brown and others alleging
multiple counts of first and second-degree armed robbery, thirddegree
theft,
third-degree
weapons
offenses,
aggravated
second-degree
assault,
armed
second-degree
burglary,
eluding,
and
fourth-degree resisting arrest. The Petitioner was not charged in
every count of the of forty-three (43) Count indictment.
The
the
jury,
charged
found Petitioner guilty of thirty-four
offenses.
Thereafter
on
September
29,
(34)
of
2006,
Petitioner was sentenced to an aggregate sentence of life plus
forty-one
(41)
years
with
an
93
years
parole
ineligibility,
pursuant to N.E.R.A.
On September 29, 2016, the Petitioner filed a petition for a
writ of habeas corpus. The petition raised seven grounds: GROUND
ONE:
Petitioner's Warrantless Arrest was Unlawful and
Illegal
and in Violation of the New Jersey Constitution and the United
States Constitution;
GROUND TWO:
Petitioner's Statements should
have been Suppressed as His Arrest was Illegal given the lack of
both an Arrest and Search Warrant
in Violation of the
States
V Amendment
Constitution,
Amendment
IV Amendment,
and New Jersey Constitution Article
and
I,
GROUND THREE: Ineffective Assistance of Counsel,
Door,
(b)
Failure
to
Investigate;
GROUND
FOUR:
United
Fourteenth
Paragraph
7;
(a) Opening the
Petitioner's
Appellate Counsel Provided Ineffective Assistance of Counsel, in
Violation of the United States Constitution Amendment VI, XIV and
New Jersey Constitution
(1947)
Article I,
4
Paragraph 10;
GROUND
FIVE: The Imposition of a Sentence consisting of a Life term with
a
Consecutive
Ineligibility,
Forty-One-Year
term,
all
subject
to
85%
Parole
is Cruel and Unusual Punishment in Violation of
the Eighth Amendment of the United States Constitution;
GROUND
SIX: The Refusal of the New Jersey Supreme Court to Extend their
Ruling in State v.
W.A.,
Violated the Petitioner's Fundamental
Right to a Fair Trial in Violation of the Sixth Amendment and the
Due
Process
Clause
of
the
Fourteenth Amendment
of
the
United
States Constitution; GROUND SEVEN: The Petition should be Granted
Due to the Cumulative Errors.
The district court denied the petition for a writ of habeas
corpus. Brown v. Johnson, No. 16-6066 (JMV), slip opinion (D.N.J.
August 6, 2019). Petitioner filed a timely notice of appeal and a
petition for a certificate of appealability
28,
2020,
(COA).
On January
the Third Circuit denied the petition for a COA.
On
July 27, 2020, the Third Circuit denied a petition for rehearing
and rehearing en banc.
5
>
REASONS WHY CERTIORARI SHOULD BE GRANTED
Point I
The Third Circuit Court of Appeals Erred in
Denying
Petitioner
a
Certificate
of
Appealability
on
His
Claim
that
His
Warrantless Arrest was
not
Unlawful
and
Illegal and in Violation of the New Jersey
and the United States Constitution.
Pursuant
to
the
Fourth
Amendment
to
the
United
States
Constitution:
"The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath
or
affirmation,
particularly
and
describing the place to be searched, and the
persons or things to be seized."
The State of New Jersey has a tantamount provision which
parallels
the
4th
Amendment.
According
to
the
New
Jersey
Constitution, Article I, Paragraph 7.
Therefore, the Federal and State Constitutions declares that
arrest
warrants
warrantless
must
arrest
in
be
a
supported
public
by
place
probable
must
satisfy
cause.
the
A
same
standard. Maryland v. Pringle, 540 U.S. 366, 370 (2003); State v.
Basil, 202 N.J. 570, 584 (2010).
Absent exigent circumstances or an officer's witnessing
crime, before arresting a suspect, police must obtain an
warrant issued by a judicial officer on a finding of
a
arrest
probable
cause that the suspect committed the alleged crime. See Steagald
v.
United States,
N.J. Super 286,
451 U.S.
294,
204
(1981);
852 A.2d 1150
6
(App.
State v.
Div.),
Cleveland,
371
certif. denied,
182 N.J.
148,
862 A.2d 57
(2004). Warrantless arrests that are
based on exigent circumstances or on an officer's witnessing a
crime are presumptively unreasonable, and violate the right to be
free from unreasonable seizure. See Payton v. New York,
573
(1980);
State v.
cert, denied,
has
the
arrest.
Henry,
510 U.S.
burden
of
984
133 N.J.
104,
110,
627 A.2d 125,
(1993). Without a warrant,
proving
Payton v. New York,
the
overall
445 U.S.
585
445 U.S.
the State
reasonableness
of
an
(1980); State v. Mann,
203 N.J. 328, 337-38, 2 A.3d 379 (2010).
The remedy for an unlawful arrest is not dismissal of the
complaint
or
charges
against
the
defendant,
but
rather
suppression of the evidence obtained as a result of the unlawful
arrest. Cleveland, 371 N.J. Super at 299.
In the case at bar,
trial court,
Court
the
Petitioner challenged before the
the Appellate Division and the New Jersey Supreme
whether
the
police
obtained
a
valid
warrant
before
effectuating his arrest. The Petitioner contends the police had
no warrant, let alone a valid warrant. Axiomatically, all of the
charges which were lodged against Him were indictable offenses.
With
respect
charges
to
involves
indictable
offenses,
the
of
filing
a
the
process
Complaint
to
of
R.3:2-l,
states:
The complaint shall be a written statement of
the essential facts constituting the offense
charged made on a form approved by the
Administrative Director of the Courts. All
complaints
except
complaints
for
traffic
offenses, as defined in R. 7:2-1 where made
on Uniform Traffic Tickets and Complaints for
non-indictable offenses made on the Special
Form of Complaint and Summons, shall be by
7
bringing
which
certification or an oath before a judge or
other person authorized by N.J.S.A. 2B:12-21
to take complaints. The clerk or deputy
clerk,
municipal
court administrator or
deputy court administrator shall accept for
filing any complaint made by any person.
Along with the complaint, the law enforcement officer files
a
warrant,
warrant
or
a
complaint-warrant
form.
R.
3:2-3.
shall be made on a Complaint-Warrant
"An
(CDR2)
arrest
form.
The
warrant shall contain the defendant's name or if that is unknown,
any
name
or
reasonable
description
certainty,
that
and
identifies
shall
be
the
directed
defendant
to
any
with
officer
authorized to execute it, ordering that the defendant be arrested
and brought before the court that issued the warrant. Except as
provided in paragraph
- judge,
clerk,
deputy
(b) ,
clerk,
the warrant shall be signed by the
municipal
deputy court administrator." R.
court
administrator,
or
3:2-3(a). No arrest warrant may
be issued on a complaint unless:
a judge, clerk, deputy clerk, municipal court
administrator. or deputy municipal
court
administrator finds from the complaint or an
accompanying affidavit or deposition, that
there is probable cause to believe that an
offense was committed and that the defendant
committed it and notes that finding on the
warrant....
R. 3:3-l(a)(1). Upon arrest, a law enforcement officer need
not show the defendant a copy of the warrant,
but the officer
must
issued
inform the
defendant
that
a
warrant
has
for
the
defendant's arrest, and the officer must notify the defendant of
the charges. R. 3:2-3(c).
8
In the Petitioner's case at bar, Detective Patrick Coffey of
the
Hackensack
Police
Department
testified
at
the
suppression
hearing before Judge Conte. Detective Coffey's testimony was that
on January 1, 2005, he drafted and signed four complaints against
the
Petitioner
charging
him
with
burglary,
theft,
possession of a firearm by a convicted person,
weapon for unlawful use,
with
possession of a
unlawful possession of a weapon,
possession of burglary tools.
Petitioner
robbery,
resisting
The
arrest
and
fifth complaint
charged the
by
threatening
using
and
violence.
According to Coffey's testimony, he spoke with an individual
[Clarke] who was arrested on Decemeber 31, 2004. That person did
not give Detective Coffey any indication that the Petitioner was
involved
in any of these
crimes.
Detective
Coffey went
further testify that the individual he spoke to
spoke
to
Detective
Finley
implicated the Petitioner."
and
gave
her
a
[Clarke],
statement
on to
later
"which
It was Coffey's testimony that the
second, the person's second statement implicated the Petitioner.
Finally,
the detective testified that the he was unaware of the
existence of a third statement.
Of the five
four
(4)
(5)
complaints
complaints drafted against the Petitioner,
listed
the
Petitioner's
address
as
"406
Prospect." The fifth complaint listed the Petitioner's address as
"45 Linden Street #7." The Petitioner testified that "his address
was 406 Prospect Street.
lived
at
45
Linden
His girlfriend and her minor daughter
Street."
Detective
9
Coffey
was
the
only
individual
who
drafted
any
of
the
Complaints
against
the
Petitioner.
At the suppression hearing,
Detective Coffey testified that
upon drafting the complaints, he "wasn't a hundred percent sure"
where the Petitioner lived, but he did not believe the Petitioner
lived with his
girlfriend.
Street"
Petitioner's
as
the
Detective Coffey listed
address
on
one
of
the
"45
Linden
complaints
because according to him " [s]omeone may have advised me" Coffey
later testified that Tori Parham [one of the co-defendants]
had
told Captain Lomia, of the Hackensack Police Department, that the
Petitioner was at his girlfriend's apartment at 45 Linden Street.
After Detective Coffey drafted the complaint, he gave
them
to his supervisor for review. Captain Lomia testified that he did
not (Lomia) reviewed the complaints, but he was aware that Coffey
had drafted them. After Coffey's supervisor reviewed them, Coffey
took the complaints to the "front desk." From this point, Coffey
does not know what happened to the complaints.
It is undisputed
that at the time of the Petitioner's arrest on January 1,
no
judicial
officer
had
yet
reviewed
the
2005,
complaints
or
authorized the Petitioner's arrest.
On January 1, at around 10:30 p.m.
about ten officers went
Connor's address to arrest the Petitioner. Around that time, the
Petitioner's mother called Connor's apartment and told her the
police
were
relayed
that
outside
the
information
and
buiding.
Connor
to
Petitioner.
five
the
officers
testified
Shortly
the
she
after,
Detective
Coffey
building,
and the remaining officers stayed outside and secured
10
entered
that
apartment
the area. An officer knocked on the door.
female
The door opened by a
[Connor]. The officer asked if Danny Brown was there,
at
which time the Petitioner jumped out a window on to the roof of
an
adjacent
crash,
building.
Coffey testified that
and another officer said,
he
heard
a
"He went out the window." The
Petitioner landed on the roof of McManus Tool Rental,
next
door
standoff,
at
41-43
Linden
large
Street.
Following
a
located
twenty-minute
Captain Frank Lomia convinced the . Petitioner to come
off the roof.
The police then arrested the Petitioner and took
him headquarters.
The face of the warrants showed that they were issued on
January 3, 2005, two days after the Petitioner's actual arrest on
January 1, 2005. In addition to the delay, the complaints did not
contain any information about the Petitioner that justified his
arrest.
The
police
reports
attached
to
the
complaints,
which
purportedly set forth probable cause for the Petitioner's arrest
for robbery,
the
car theft,
Petitioner
by
and gun offenses,
name.
Only
the
did not even mention
resisting
recounted events that occurred at the
scene
charge,
which
of the arrest,
referred to the Petitioner's conduct.
It is exceeding clear that the police lacked the authority
to arrest
the Petitioner on January 1,
2005.
Under the facts
presented above, a neutral and detached magistrate was the
only
constitutional officer authorized to determine whether probable
cause existed,
and if so, to issue a proper warrant authorizing
the police to execute it.
471,
482-83
(1963);
Wong Sun v.
State v.
Bobo,
11
United States,
222 N.J.
Super 30,
371 U.S.
34,
535
A.2d
983
(App.
Div.
1987);
R.
3:3-l(a).
Therefore,
the
Petitioner's arrest on January 1, 2005 was unlawful.
The Petitioner further dispute that there was probable cause
to arrest him.
Based on the fact,
in order to arrest him there
must be probable cause to believe that a crime has been committed
and that the person sought to be arrested committed the offense.
State v. Chippero, 201 N.J. 14, 28, 987 A.2d 555 (2009). Probable
cause requires
"more than a mere suspicion of guilt" but
evidence than needed to convict at trial.
Basil,
998
the
A.2d
472.
The
Petitioner
disputed
less
202 N.J.
fact
there
585,
were
statements of Petitioner's co-defendants implicating him in armed
robberies.
Probable
cause
within [the officers]
exists
where
the
facts
and
circumstances
knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant
a
[person]
of reasonable caution in the belief that an offense
has been or is being committed.
Schneider v.
Simonini,
163 N.J.
336, 361 (2000), cert, denied 531 U.S. 1146 (2001).
Importantly,
Detective Coffey's testimony was incorrect
in
that the second statement to which he referred given by Kenyatta
Clarke
was
taken
by
Detective
mention
of
the
Petitioner
information
was
material
arrest,
Miranda
warnings
suppress
the
evidence
illegally obtained.
Finley.
In
in
the
second
to
the
defective
and
the
hearing
which
the
Petitioner
In addition,
12
fact,
there
statement.
warrants,
on
on re-direct
was
the
no
This
illegal
motion
submitted
to
was
Detective Coffey
continued that "Durant and Sibdhannie", prior to the Petitioner's
arrest, implicated him. Which was not true either.
The
Petitioner
contends
that
absent
exigent
circumstances
or consent, the police must obtain a warrant to conduct an arrest
inside
warrant
a
home.
Payton,
"implicitly
445
U.S.
at
589-90
carries
with
it
the
(1989) .
limited
An
arrest
authority
to
enter a dwelling" where the suspect lives when there is reason to
believe the
suspect
is
inside.
Id.
at
603.
To search
for the
suspect of an arrest warrant in the home of a third party,
police must also obtain a search warrant
once again,
the
absent
exigent circumstances or consent. Steagald v. United States, 451
U.S. 204, 216 (1981).
Despite the important benefits offered by arrest warrants,
they are not required in all cases.
made
in public places
and
For example,
felony arrests
supported by probable
cause
valid without a warrant. United States v. Watson,
417
(1976), quoting Carroll v. United States,
(1925).
IT
SHOULD
arrest
of the
NOTED:
that
Petitioner
the
in this
unlawful
case,
can be
423 U.S.
267 U.S.
and
132,
411,
156
un-warranted
neither occurred in a
public place nor was there probable cause for it.
In
addition,
under
N.J.S.A.
40A:14-152,
full-time
police
officers "have full power of arrest for any crime committed in
[the]
officer's
territorial
presence
limits
and
of the
committed
State
anywhere
of New Jersey.
within
the
Which was
not
circumstances in the Petitioner's case.
With respect to the resisting arrest charge, this would not
invalidate
an
otherwise
illegal
13
arrest,
nor
break
the
causal
connection between the
challenged evidence.
charged and convicted under N,J.S.A.
The
Petitioner was
2C:29-2(a) (2), which states
in relevant part:
Except' as provided in paragraph (3), a person
is guilty of a disorderly persons offense if
he purposely prevents or attempts to prevent
a law enforcement officer from effecting an
arrest. (2) Except as provided in paragraph
(3) , a person is guilty of a crime of the
fourth degree if he, by flight, purposely
prevents
or
attempts
to prevent
a
law
enforcement officer from effecting an arrest.
(3) An offense under paragraph (1) or (2) of
subsection a. is a crime of the third degree
if the person:
(a) Uses or threatens to use physical force
or violence against the law enforcement
officer or another; or
(b) Uses
any
other
means
to
create
a
substantial risk of causing physical injury
to the public servant or another.
It is not a defense to a prosecution under
this subsection that the law enforcement
officer was acting unlawfully in making the
arrest, provided he was acting under color of
his official authority and provided the law
enforcement officer announces his intention
to arrest prior to the resistance.
According to State v. Branch,
Div.
1997)
The
State must prove
301 N.J. Super 307,
rev'd in part on other grounds,
155 N.J.
321
317
(App.
(1998).
its burden by showing that the defendant
knows of his arrest and that he nevertheless resisted the arrest,
also the police must announce their intentions to arrest,
citing
State v. Murphy, 185 N.J. Super 72, 447, A.2d 219 (Law Div. 1982)
See also State v. Kane, 303 N.J. Super 167 182
The
Court
held
that
the
State
failed
14
to
(App. Div.
prove
the
1997).
defendant
resisted arrest,
also that
the police
had not
announced their
intention to arrest the Petitioner.
The Petitioner asserts there was no testimony on record by
Detective
Patrick Coffey,
or any other law enforcement officer
that prior to the Petitioner jumping out of the window, they had
announced
their
intentions
Petitioner
came
down off the
to
arrest
him.
roof on his
Furthermore,
own as
the
testified by
Captain Lomia.
Everyone in this case agreed the arrest of the Petitioner was
unlawful as there was no warrant to arrest him, no search warrant
to search and no probable cause to believe he committed any of the
crimes alleged by Detective Coffey.
In addition there was no exigency to enter Ms. Connor's home
either to search for the Petitioner or search the premises for
fruits of illegal crimes.
15
Point II
The Third Circuit Court of Appeals Erred in
Denying
Petitioner
a
Certificate
of
Appealability
on
His
Claim
that
His
Statements should not have been Suppressed as
His Arrest was Illegal given the Lack of Both
an Arrest and Search Warrant in Violation of
the New Jersey Constitution Article I, Para.
7 and the United States Constitution, IV
Amendment,
V
Amendment
and
Fourteenth
Amendment.
The
Petitioner
girlfriend,
Chasity
were
arrested
Connor's
on
January
apartment.
1,
Equally
2005,
at
his
unequivocal, is
that no valid arrest or search warrant was procured prior to the
Petitioner's arrest.
According to the record,
Detective Patrick
Coffey, of the Hackensack Police Department signed five complaints
against the Petitioner for robbery, burglary and various weapons
charges.
The Detectives took no further action on these complaints,
except to turn them over to the desk sergeant assuming they would
be properly "jurated",
given to the appropriate officer of the
court for a finding of probable cause. As pointed out by defense
counsel, these complaints were "jurated" but not until January 3,
2005, two days after the Petitioner's arrest and the obtaining of
incriminating
statements
from
him.
The
Detectives
had
no
explanation for this discrepancy, except to say that he "just gave
them to our front desk"
and had no
idea what happened to the
complaints thereafter.
Captain Frank Lomia, the commanding officer at the time and
the one who ordered the Petitioner's arrest, claimed there was an
arrest warrant for the Petitioner, who could possibly be found at
his
girlfriend's apartment.
However,
16
Captain Lomia conceded he
\
never
actually
saw
the
complaints
(nor
any warrants)
and
was
operating pursuant to what he had been told by Detective Coffey.
No validly•"jurated" arrest or search warrants were provided
by the State. All that was apparently done was Detective Coffey's
signing of the complaints and then passing them onto the next link
in the
chain,
in this
actually
evaluated by
January
3,
2005,
case,
a
two
the
neutral
days
desk
and
sergeant.
They were
detached magistrate
after
the
actual
not
until
arrest
and
arrest
was
interrogation.
The
first
issue
to be
decided
is
whether
the
valid, given the absence of signed warrants. N,J,S.A. 40A:14-152.1
empowers
"any full-time,
officer ...
permanently appointed municipal police
[to] arrest for any crime committed in said officer's
presence and committed anywhere within the territorial limits of
the State of New Jersey.
In addition, under common law, a police
officer could make an arrest without a warrant if the crime was
committed in his or her presence or if he or she had probable
'cause to believe a felony had been committed. State v. Henry, 133
N.J.
104,
128
(1993),
cert denied 510 U.S.
to
obtain
an
arrest
warrant,
invalidate
an
arrest
in
a
even
public
if
place
984
(1993). A failure
practicable,
does
not
as
there
is
long
as
probable cause. State v. Doyle, 42 N.J. 334, 343 (1964). In fact,
the United States Supreme Court has noted, with regard to arrests
made outside a home,
arrest
that
"the Court has never invalidated an
supported by probable cause
solely because
failed to secure a warrant. Gerstein v.
Pugh,
the officers
420 U.S.
103,
113
(1975). This general historical provision has been followed in New
17
i’
Jersey.
Doyle,
42 N.J. at 345-46. However, there was no probable
cause in the Petitioner's case.
However,
if the police choose to obtain an arrest warrant,
there are procedures which must be followed.
R.
3:2-1 dictates
what a complaint must include, basically a recitation of the facts
of
the
offense.
certification
or
In
addition,
all
an oath before
complaints
the proper
must
be
authority.
done
R.
by
3:3-
1(a) (1)
describes how a warrant is to be processed. Basically, a
"judge,
clerk,
deputy
deputy municipal
clerk,
court
municipal
administrator"
court
must
administrator
find
that
there
or
is
probable cause to believe the defendant committed an offense.
The analysis changes drastically when the invasion of a home
is
involved during the
situations,
defendant
process
of making
(1980) .
arrest.
In
those
the police must have probable cause to believe the
committed
the
crime
and
exigent circumstances or consent).
573
an
an
arrest
Payton v.
warrant
(absent
New York,
445 U.S.
If the defendant is to be seized in someone else's
home, a separate search warrant must also be obtained. Steagald v.
United States,
451 U.S. 204. In short, before a defendant may be
legally arrested in a home, the police must have probable cause,
an arrest warrant,
and where applicable,
a search warrant. When
probable cause exists and the police know it and nonetheless fail
to obtain a warrant to enter a home and make the arrest,
the
constitution is violated.
Detective Coffey felt confident about having probable cause,
based on the statements of the three co-defendants. He also knew
at some level that, in addition to probable cause, he would need a
18
*
warrant to enter the home.
complaint
and
giving
it
His effort consisted of filing out a
to
the
desk
sergeant.
No
effort
apparently made thereafter to obtain an actual warrant.
was
Instead,
ten officers responded to Ms. Connor's apartment, specifically to
arrest the Petitioner.
The Petitioner maintained that the two warrants were required
before the police could actually enter Ms. O'Connor's apartment" a
search warrant and an arrest warrant. If the suspect is thought to
be
at
third
party's
home,
a
separate
search
warrant
must
be
obtained before the home can be legally entered and the suspect
arrested.
The New Jersey Appellate Division did find that the arrest
herein was unlawful because no arrest warrant was ever procured.
The Court held:
However, because the face of the warrant
shows that it was issued on January 3, 2005,
two days after defendant's actual arrest, we
are compelled to find that the police lacked
the lawful authority to arrest defendant on
January 1,
2005.
Under the circumstances
presented here, a neutral magistrate was the
only constitutional officer authorized to
determine whether probable cause existed, and
if so, to issue a proper warrant authorizing
the police to execute it.
State v. Brown, 2009 N.J. Super Unpub. Lexis 2181, *37
Div. August 7,
2009) .
The Petitioner maintained that,
(App.
with this
issue, the Court was correct. However, he disagrees primarily with
the finding that no remedy was required.
An, entry into a home to arrest a suspect must ordinary be
accompanied by a valid arrest warrant. The State bears the burden
of proving that the failure to obtain such a warrant falls within
19
a recognized exception to this Rule.
N.J.
586
(2004),
case
on this
cert,
issue
denied,
is
See State v.
543 U.S.
Payton v.
876
New York,
Frankel,
179
(2004).
The leading
445
573,
U.S.
586
(1980) . In that case, the police went to the home of a suspect to
effectuate an arrest,
one clearly based on probable cause.
They
had neither an arrest warrant nor the consent of anyone to enter
the home. A gun was found and seized.
The United States
Supreme Court
held that
a
valid arrest
warrant must be obtained before the police can enter a home to
effectuate an arrest and that any evidence found after such an
entry would be suppressed.
An unsigned warrant,
however,
is not a warrant within the
meaning of the Fourth Amendment. An unsigned warrant is a blank
paper
and
officers
cannot
reasonably
deficiency as authorization for search.
469 F.Supp.2d 893
rely
on
such
a
glaring
" United State v. Evans,
(D. Mo. 2007). This axiom is hardly a new one.
See Davis v. Sanders, 19 S.E. 138 (S.C. 1894).
In New Jersey, the law is also that unsigned warrants are the
equivalent of no warrant. In State v. Bobo, 222 N.J. Super 30, 34
(App.
Div.
evidence
1987),
seized
The Appellate Division ordered suppression of
pursuant
improperly obtained.
to
In Bobo,
a
search
warrant,
but
a
warrant
he officer prepared a complaint /
warrant form (the same form used in the case at bar), then brought
the form to the actual home of the deputy court clerk, who signed
the warrant. Bobo, 222 N.J. Super at 32.
The
problem in
Bobo was
that
the
victim,
a Mr.
Gonzalez
signed the complaint, but not in the presence of the deputy clerk.
20
The police officer was the one who witnessed Gonzalez sign the
complaint, making him, in essence, the magistrate, in violation of
constitutional law and our courts rules.
citing Wong Sun v. United States,
The Appellate Division,
371 U.S.
that the determination of probable cause,
471
(1963)
emphasized
for warrant purposes,
"can only be made by a neutral and detached judicial official."
Bobo, 222 N.J. Super at 34.
When a warrant is issued for a person's
arrest, it is of course necessary for a
judge, clerk or deputy clerk to determine if
there is probable cause that the particular
suspect has committed the offense.
State
v.
Gonzalez,
114
N.J.
592,
605
(1989),
In
the
Petitioner's case, the clerk did sign the arrest warrant, but only
after
the
arrest
had
already
been
completed
and
statements
obtained.
The
other warrant which
should have been
obtained in the
Petitioner's case as noted by trial counsel in his argument before
the trial court.
It was uncontroverted that the
Petitioner was
arrested at his girlfriend's apartment. Detective Coffey conceded
that 45 Linden Street was not where the Petitioner resided,
but
was
where
his
Petitioner
and
girlfriend
his
lived.
family,
girlfriend's apartment.
"
Detective
referred
to
Lomia
the
who
knew
the
peace
as
"his
The Detective believed the Petitioner
might have been visiting the apartment.
Detective Coffey stated
that the officers "had information" that the Petitioner was in the
apartment,
but did not elaborate.
In fact,
the officer admitted
the Petitioner's last known address was 406 Prospect Street and
that only one of the complaints prepared referred to Ms. Connor's
21
apartment.
Ms.
Connor affirmed this belief,
testifying that the
Petitioner
did
not
only
live
with
her
and
was
visiting.
The
Petitioner also testified he never lived at O'Connor's apartment.
In State v. Miller, 342 N.J. Super 474
(App. Div. 2001), the
Appellate Division, for the first time addressed the issue of what
a police officer must do when he or she goes to the home of a
third party to arrest
someone who
is visiting,
there.
police
an
suspect,
In
Miller,
but no
the
had
search warrant
arrest
for the house
but not
warrant
living
for
the
in which he was
located. Relying on State constitutional grounds:
As a matter of State law, therefore, we adopt
a two-part standard governing the execution
of an arrest warrant in circumstances such as
those at hand: in the absence of consent or
exigency, an arrest warrant is not lawfully
executed in a dwelling unless the officers
executing
the
warrant
have
objectively
reasonably bases
for believing that the
person named in the warrant both resides in
the dwelling and is within the dwelling at
the time.
A separate search warrant for the home,
arrest warrant for the suspect,
therefore,
in addition to the
is required.
Steagald
v. United States, 451 U.S. 204, 217-20 (1981)
In the Petitioner's case,
the officers neither obtained an
arrest warrant nor a search warrant. There was no suggestion that
Ms.
Connor gave her consent or that
an emergency existed.
Ten
police officers responded to Ms. Connor's apartment, intending to
arrest the Petitioner. Ms. Connor opened the door. It is somewhat
unclear exactly what happened next,
Fourth Amendment
and
its
New
though,
Jersey
22
for purposes of the
counterpart,
it
does
not
<
matter,
since whatever happened was a direct
result
of police
misconduct and flouting of procedure.
The officers were clearly intending to enter the apartment.
The door was opened and a crash was heard. According to Detective
Coffey, one of the officers knocked on the door which was opened
by a female. The officers asked for the Petitioner, at which point
the Petitioner jumped out of the bedroom window, the first officer
entered the apartment and chased him.
The officers clearly intended to enter Ms. Connor's apartment
without obtaining a valid arrest warrant or search warrant. There
were ten officers, all armed and prepared to enter the premises.
The
flight
of
the
Petitioner
is
a direct
consequence
of
this
constitutional violation. The police cannot claim that some sort
of emergent circumstance, such as the Petitioner's jumping out the
window,
forced them to enter a home without a warrant when they
themselves
created
the
exigency
by not
bothering
to
secure
a
warrant before they entered the home.
A similar situation occurred in State v. Tucker, 136 N.J. 158
(1984),
the
the suspect, during an improper police chase, threw away
drugs
in
his
possession.
The
State
claimed
abandonment.
However, the New Jersey Supreme Court held that the throwing away
of the drugs was a response to an unlawful police pursuit and
attempted
seizure.
Petitioner
flight
A
or
similar
situation
"abandonment"
occurred
here.
of the apartment was
The
caused
entirely by a illegal entry into Ms. Connor's apartment. See also
State v. Hutchins, 116 N.J. 457, 476 (1989)
(courts should be wary
of exigencies created by the police in an effort to avoid the
23
\
warrant requirement). The police may not act illegally and thereby
create an exigency that allows them to flout the constitution.
If this
court determines
that the
Petitioner's arrest was
unlawful, the issue of remedy remains.
The
Petitioner
statements
is
the
contends
only
that
the
effective
exclusion
remedy
to
of
these
deter
the
constitutional violation that occurred in this case. The rationale
behind this sometimes extreme remedy is "to compel respect for the
constitutional guarantee is the only effective way "by removing
the incentive to disregard it.
" United States v.
Calendra,
414
U.S. 3338 (1974) .
In sum, the lack of both an arrest warrant and search warrant
in
the
Petitioner's
case
requires
Constitution
and
New
Jersey
statements
made
by
the
violation
of
his
federal
under
Constitution,
Petitioner,
and
New
the
suppression
statements
Jersey
United
right
States
of
the
obtained
in
to
free
from
unreasonable searches and seizures. The State provided nothing to
show that this connection has been broken. Brown v. Illinois, 422
U.S. 590 (1975).
In looking at the "fruit of the poisonous tree" test to the
statements made by the Petitioner suppression would be mandated.
Three factors are considered to be key in the analysis:
(1)
temporal proximity between the arrest and the confession;
(2) the
presence of any intervening circumstances; and
(3)
the
the flagrancy
of the official misconduct. Brown v. Illinois, 422 U.S. at 603-04.
The prosecution bears the burden of providing admissibility. Each
24
situation must be evaluated based on the individual facts of the
case.
The first part of the test,
illegality
and
the
statement
temporal proximity between the
has
been
held
to
be
the
least
important factor. See State v. Johnson, 118 N.J. 639, 654 (1990).
In the case at bar, the Petitioner was arrest at 10:30 p.m.,
on January 1,
2005.
The first attempt at interrogation began at
midnight but was suspended because of the Petitioner's allegedly
belligerent
attitude.
The
Petitioner
was
taken
back
to
his
cellblock at approximately 1:00 a.m. He was not brought back for
further questioning until approximately 12:30 p.m.,
some twelve
hours after his arrest.
The second part of the test,
circumstances
significant
enough
the appearance of intervening
to
break
the
chain
between
illegality and the confession militates in favor of suppression.
It has been deemed the most important factor in the analysis. The
only intervening factor cited by the detectives was the fact that
Miranda warnings were given before the statement was extracted. As
the Court noted in State v.
Barry,
86 N.J.
80,
87
(1981),
cert
denied, 454 U.S. 1017 (1981), the giving of such warnings, without
more,
is
not
enough
to
break
the
causal
chain.
In
Illinois, 422 U.S. at 603:
Although Miranda warnings,
such as those
administered to defendant, are "important . . .
in determining whether the confession is
obtained
by
exploitation
of
an
illegal
arrest,"
such
warnings
are
not
always
sufficient
to
"break
...
the
causal
connection between the illegality and the
confession. "
25
Brown
v.
There were otherwise no such factors alleged by the State.
Where,
as here,
there was egregious conduct on the part of the
police, the State should show some demonstrably effective break in
the
chain
statement,
of
events
such
as
leading
actual
from
the
illegal
arrest
to
the
with
counsel
or
the
consultation
accused's presentation before a magistrate for a determination of
probable cause.
Therefore,
Petitioner
a
the
district
Certificate
court
erred
of Appealability,
court ruling was contrary to Federal law.
26
in
not
because
granting
the
the
State's
•*>-
Point III
The Third Circuit Court of Appeals Erred in
Denying
Petitioner
a
Certificate
of
Appealability on His Claim that He was not
Denied Effective Assistance of Trial Counsel.
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).
A
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
Under this standard,
performance
was
(1984).
petitioner must show that trial counsel's
deficient
and
the
deficient
performance
Washington,
466
U.S.
(1986),
prejudiced the defense.
In
Strickland
v.
668,
and
adopted by the Supreme Court of New Jersey in State v. Fritz, 105
N.J. 42 (1987) .
The two-prong test of Strickland,
and Fritz is
(1)
whether
counsel's performance was deficient, and (2) whether there exist
"a
reasonable
probability
that,
but
counsel's
unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694.
27
(a) Trial Counsel Provided Ineffective Assistance when
He Opened the Door during Cross-examination of His
Witness.
The Petitioner contends his trial counsel made serious error
at
the
time
of
trial,
which
rises
to
the
level
of
a
constitutional violation.
Trial counsel conducted an examination of his own witness,
Lieutenant Frank Novak, in such a way that he opened the door to
admission
of
inculpating
person',
evidence
the
who
that
Petitioner.
was
not
co-defendants
The
subject
to
j ury
was
gave
told
statements
that
cross-examination,
police that the Petitioner committed the robberies.
'another
told
the
The actions
of trial counsel were not a strategic miscalculation or trial
mistake,
rather a complete failure on the part of trial counsel
to become familiar with the law regarding such examination and
evidence and constitutionally deprived the Petitioner of a fair
trial.
During
trial
Lieutenant
Novak
was
questioned
at
the
importuning of counsel about the dates contained in the complaint
which
charged
the
Petitioner
with
a
robbery
in
Teterboro.
Lieutenant Novak agreed that the Petitioner was not arrested on
the
date
contained
in
the
complaint.
admission from Lieutenant Novak,
After
receiving
this
counsel continued to question
him about the "lack of identification" of the Petitioner by the
alleged victim of the Teterboro Robbery and the fact that the
Petitioner did not give a statement about the Teterboro Robbery.
28
<X
*■
In
fact,
counsel
went
forward
with
his
examination
by
stating:
And nobody ever told you that Daniel Brown
made that statement. Nobody ever said to you,
okay
well, the victim didn't say to you
that Mr. Brown made that statement, correct?"
The
question
was
clarified
by
counsel
and
related
as
follows:
"[t]he victim, Mr. Toronto, never said to you
that Daniel Brown was armed with a handgun,
correct?" The response was "[h]e never said
Mr. Brown was armed with a handgun, no. He
didn't know
Mr. Brown at that time."
Counsel then went forward to question the Lieutenant regarding
the fact that the complaint for said Teterboro robbery was signed
two
(2)
days before the Petitioner was in custody.
In response,
the assistant prosecutor informed the Court, as follows:
Judge, I'm just alerting the Court of this.
Mr.
Kittner
[trial
counsel]
showed
the
witness here the complaint identified as D32. He made an issue as to when the complaint
was signed and how it could have been signed
prior to the arrest of the defendant and lack
of statement,
et cetera,
et cetera,
et
cetera. I have every intention now that the
area was broached by Mr. Kittner [trial
counsel] that he opened the door to it, that
Winston
Durant
[co-defendant],
who
was
interviewed by this detective [sic] on that
date identified Daniel Brown as the man with
the gun in his hand during the robbery in
Teterboro.
The doctrine of opening the door allows a party to elicit
otherwise inadmissible evidence when the opposing party has made
unfair prejudicial use of related evidence. United States v. Lum,
466 F.Supp 328 (D. Del), aff'd 605 F.2d 1198 (3d Cir. 1979).
29
1 0*- •
Accordingly, the State was permitted to introduce testimony
that co-defendant, Winston Durant gave a statement to Lieutenant
Novak telling him what happened in the case.
upon
this
involved"
statement
that
the
and
conversations
complaint
against
the
this
error
It was then based
"with
other
people
Petitioner
for
the
by
counsel
Teterboro robbery was signed.
The
Petitioner
contends
trial
essentially eviscerated His defense to the robbery and the jury
put great weight on that testimony.
The underlying theory of the defense was that aside from the
confessions later obtained by various police departments,
there
was absolutely no evidence to link the Petitioner to any of these
robberies. In fact, trial counsel for the Petitioner informed the
jury, in his opening statements that:
And my question to you is who says that
Daniel Brown stole the car? Who says it? He
[Daniel Brown] says it. The victims don't say
it. Eyewitnesses don't say it. Scientific
evidence doesn't say it. Forensic evidence
doesn't say it.
In his opening trial counsel also informed the jury that no
one would identify the Petitioner as one of the robbers for any
of the robberies. Furthermore, trial counsel continued that there
was no forensic evidence linking the Petitioner to any of the
robberies. Finally, trial counsel finished his opening statement
with:
That's what this case is about. That's all of
the facts. So who says Daniel Brown did it?
Who says? Did any of the victim say? No. Does
any of the forensic evidence say it. No. Does
any of the visual evidence that you're going
to see say that Daniel Brown was involved?
No.
30
ijy
•
This
strategy
continues
even
after
the
constitutional
blunder by trial counsel where he, himself opened the door to the
Petitioner's
co-defendant's
statements.
In
his
examination
of
Novak, he noted there was "no forensic evidence. " There were "no
fingerprints
matches".
There
were
"no
shoeprint
matches"
and
there were "no identifications by victims. " He failed to address
the proof that he elicited at trial regarding the co-defendants'
statements,
which evidence was previously ruled inadmissible by
the Court but admitted after trial counsel opened the door to it.
After this damming admission, the State successfully argued
that
trial
counsel
opened
the
door
to
such
evidence,
trial
counsel further compounded this error by failing to seek from the
court
a
limiting
evidence.
instruction
For example,
evidence
as
to
the
is
still
admission
subject
to
of
this
exclusion
where a court finds that the probative value of the otherwise
inadmissible responsive evidence "is substantially outweighed by
the
risk
of
misleading
the
(a)
undue
jury
..."
prejudice,
New
Jersey
confusion
Rules
of
of
issues,
Evidence
or
403.
Introduction of otherwise inadmissible evidence under the shield
of
[those]
doctrines is permitted "only to the extent necessary
to remove any unfair prejudice which might otherwise have ensued
from the originals evidence." United States v. Winston, 447 F.2d
1236, 1240 (D.C. 1971).
Therefore,
the Petitioner contends trial counsel failed to
recognize the applicability of Rule 403 of the Rules of Evidence.
Instead,
he chose to allow unfairly prejudicial evidence to be
presented to the jury and made a motion for a mistrial.
31
This argument was as followed
It's the issue that we've been sort of
avoiding this entire trial. And to say that
by my question asking the Lieutenant about
dates and the manner in which he prepared
the Complaint, to say that that opened the
door to a constitutional violation I think
is overstating the situation.
The trial court denied the Motion for a Mistrial and stated
that "[y]ou can't get into certain areas and then elicit certain
information and then indicate, well, you had no information from
anyone and you went ahead and you prepared these complaints."
The Court stated "[y]ou can't have it both ways." The Petitioner
contends that the trial court erred in denying the Motion for
mistrial as well.
However, trial counsel failed to argue that any prejudice to
the State was minimal and could be cured by sanitized evidence,
for
example
a
stipulation.
In
State
of
New
Jersey
v.
Vanderweaghe, 351 N,J. Super 467, 484 (App. Div.), aff'd 177 N.J.
229
(2003)
sanitized
the
Court
evidence,
specifically
when
evidence
recognized
was
held
the
role
admissible,
of
but
potentially excludable as unduly prejudicial.
Therefore,
the
District
Court
erred
in
not
granting
a
certificate of appealability on the issue that the Petitioner was
not denied effective assistance of trial counsel.
s 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
32
-4^
p ■
The Court should grant the petition for a writ of certiorari
and reverse the decision of the Superior Court of New Jersey,
Appellate Division.
Respectfully submitted,
Dated: October 23, 2020
^Daniel Twian Brown
33
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