NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1426-14T2 STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN M. KING, a/k/a JOHNATHAN BLAKNEY, MARCUS KING, MARCUIS KING, JOHN MONTRELL KING and JONATHAN BLAKNE,
Defendant-Appellant. —————————————————————————————————
Submitted May 25, 2017 – Decided August 2, 2017
Before Judges Hoffman and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-05-0955.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant John King appeals from the Law Division order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. He argues his trial counsel provided ineffective assistance because he failed to investigate the
credibility of Sergeant Gary Griffith's account of his arrest.
Defendant presented the PCR court with a report directly
contradicting Sergeant Griffith's account of how and why he pulled
defendant over. If the trial court had found Sergeant Griffith
not credible, the State would not have met its burden to admit
defendant's cocaine and his admission it belonged to him. We
therefore vacate the order denying PCR and remand for an
evidentiary hearing.
I.
We have based the following description of defendant's arrest
on testimony from the suppression hearing because his appeal
focuses on his legal representation during this hearing. On
November 23, 1997, Sergeant Griffith of the Port Authority Police
worked the 3 p.m. to 11 p.m. shift, assigned to the post at the
Palisades Parkway Toll Plaza near the George Washington Bridge.
During his shift, he periodically patrolled the bridge. At
approximately 9:30 p.m., Sergeant Griffith started driving to New
Jersey from the New York side of the bridge. Traveling in the
rightmost lane, he noticed another vehicle 300 yards ahead passing
others at a "higher rate of speed." He approached the vehicle
about midway over the bridge and matched his speed with the
vehicle's for approximately three-tenths of a mile. His
2 A-1426-14T2 speedometer read fifty-eight miles per hour, thirteen miles per
hour over the speed limit.
On cross-examination at the suppression hearing, defense
counsel asked Sergeant Griffith how he caught up to the vehicle
at the midway point of a 3,000 foot bridge if he started 900 feet
behind it. Asked if he was going "about 90, 100 miles an hour to
catch up to" the vehicle, Sergeant Griffith responded, "I – I
don't – don't think so." Defense counsel then asked, "[Y]ou saw
that . . . at 9:30 at night on a November night, you saw a car 900
feet ahead of you, you could see that he was passing cars at a
high rate of speed." Sergeant Griffith replied, "That's correct."
Defense counsel then asked, "900 feet away . . . the length of the
Intrepid, you could see a beige Toyota passing other cars at a
high rate of speed, right?" Sergeant Griffith responded, "I didn't
know what kind of car it was until I pulled the vehicle over;"
nevertheless, he maintained his claim he saw the subject vehicle
passing cars at a high rate of speed from 900 feet away.
After pacing the subject vehicle for approximately three-
tenths of a mile, Sergeant Griffith signaled for the driver to
pull over. The vehicle stopped under a nearby overpass. Sergeant
Griffith stopped his car behind the vehicle and noticed two people
in the car, one in the driver's seat and one in the front
passenger's seat. He approached the driver's side from behind and
3 A-1426-14T2 asked the driver for his license, registration, and insurance
card. The driver produced his New Jersey driver's license and a
rental agreement. During this exchange, Sergeant Griffith used
his flashlight to illuminate the vehicle and the driver. He
noticed the driver's "eyes were dilated," and his "pupils were
very, very sluggish." Sergeant Griffith did not smell any alcohol,
but based on his training and experience, the driver "was possibly
under some type of narcotic."
Sergeant Griffith asked the driver to exit the vehicle because
he "wanted to see if he had any other disabilities." As the driver
exited the vehicle, he was "very unsteady [on] his feet, . . .
swaying a little bit, sagging his knees." Sergeant Griffith
concluded the driver was "under the influence of some kind of
controlled substance." He consequently told him that he was under
arrest and read his Miranda rights to him. He then handcuffed
him, frisked him for weapons, and placed him in his patrol car.
Sergeant Griffith approached defendant, seated in the front-
passenger seat. From his experience, "if you have one or two
people in the vehicle[,] there's always a possibility of finding
narcotics or another person being under the influence of
narcotics." He asked defendant "his name[] and where he was coming
from." Defendant said his name was "Jonathan Blakeney," and he
was "coming from the [c]ity." Sergeant Griffith asked for
4 A-1426-14T2 identification, but defendant said he did not have any. Sergeant
Griffith did not smell any alcohol; when he used his flashlight
to illuminate defendant's face, he noticed his pupils were very
dilated and "sluggish" to react to the light. Sergeant Griffith
described defendant as "very hyper, talked very fast[,] and then
he started to open his pants," while saying, "I ain't got nothing
on me." Sergeant Griffith told him to stop; based on his training
and experience, he believed defendant was trying to divert his
attention from something.
As a result, Sergeant Griffith asked defendant to exit the
vehicle. When he got out of the vehicle, defendant "was very
unsteady on his feet, swaying, sagging." Sergeant Griffith
"believed that he was under the influence of a controlled dangerous
substance," and therefore arrested him and read him his Miranda
rights. When Sergeant Griffith patted down defendant for weapons,
he felt something "right behind his belt buckle in his back inside
his shirt area." Sergeant Griffith consequently removed the object
from behind his belt buckle and found a brown paper bag containing
"a couple of clear plastic bags with white rock and . . . off-
white rock." He believed the rocks were cocaine and crack cocaine
and told defendant he was under arrest for possession of a
controlled substance.
5 A-1426-14T2 At the police station, the driver and defendant produced a
urine sample upon request. Defendant's sample did not show any
controlled dangerous substances. The white rocks tested positive
for cocaine and weighed 8.85 ounces. Sergeant Griffith reread
defendant his Miranda rights, and defendant admitted the cocaine
belonged to him.
A grand jury returned an indictment charging defendant with
first-degree possession of cocaine with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count one), and
third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count
two). Defendant filed a motion to suppress the cocaine and his
admission. The trial court denied the motion.
At trial, the State presented two witnesses, Sergeant
Griffith and a police detective, who provided expert testimony
regarding intent to distribute the cocaine. The jury found
defendant guilty of both charges. The trial court sentenced
defendant to an extended prison term of twenty-five years, with a
ten-year period of parole ineligibility.
Defendant appealed his conviction and we affirmed. State v.
King, No. A-4512-04 (App. Div. Feb. 6, 2007). The New Jersey
Supreme Court denied his petition for certification. State v.
King, 192 N.J. 70 (2007).
6 A-1426-14T2 On December 20, 2007, defendant filed the petition under
review. PCR counsel retained a private investigator to determine
whether Sergeant Griffith could have seen a vehicle 900 feet away
on the bridge and then caught up to it before the middle of the
bridge. The investigator previously worked as a police officer
for four years and as an investigator for twenty-four years.
According to the investigator, the bridge is "4,760 feet long or
approximately [nine-tenths] of a mile." Retracing Sergeant
Griffith's path returning to New Jersey on the bridge, and "[g]iven
the relative position of the vehicles and the slope of the bridge,"
the investigator was "unable to see anything 300 yards forward of
[his] position and conclude[d] that it is not possible to do so."
Defendant also obtained an email from an ophthalmologist.
The email stated:
There are many causes of pupillary dilation with the vast majority of causes from pharmacologic agents. Over the counter cold medications, decongestants and appetite suppressants are perhaps the most common causes. There are also many prescription medications that can cause pupillary dilation. Illicit drugs such as amphetamines and cocaine can cause dilation in addition to various dilating drops used in our clinical practice. From an external examination using direct illumination, it would be extremely difficult to determine the actual cause of dilation (over the counter medications versus illicit drugs) without formal laboratory investigation.
7 A-1426-14T2 Defense counsel also filed a supplemental brief in support
of defendant's petition. On March 8, 2011, without hearing oral
argument, the PCR court issued a written opinion, denying
defendant's petition without an evidentiary hearing. On November
12, 2014, defendant filed a motion to file notice of appeal as
within time; we granted defendant's motion on December 9, 2014.
Defendant presents the following arguments for our
consideration:
POINT ONE
THE PCR COURT ERRED IN DENYING [DEFENDANT] AN EVIDENTIARY HEARING DESPITE THE FACT THAT [DEFENDANT] PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
A. Trial Counsel Was Ineffective In Failing To Conduct A Thorough Investigation Into The Facts of The Case.
B. Trial And Appellate Counsel Were Ineffective In Failing To Present The Argument That The Stop of the Vehicle Was A Case of Racial Profiling.
POINT TWO
THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF AS TRIAL AND APPELLATE COUNSEL FAILED TO ARGUE AT TRIAL AND ON APPEAL THAT [DEFENDANT'S] ARREST WAS WITHOUT PROBABLE CAUSE AND IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.
POINT THREE
THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF AS TRIAL 8 A-1426-14T2 COUNSEL'S PERFORMANCE AT TRIAL WAS DEFICIENT AND PREJUDICED [DEFENDANT'S] RIGHT TO A FAIR TRIAL.
POINT FOUR
THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING PCR COUNSEL THE OPPORTUNITY TO PRESENT ORAL ARGUMENT.
II.
Because the PCR court did not conduct an evidentiary hearing,
we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421
(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005). To show ineffective assistance of counsel, a
defendant must satisfy the two-pronged test of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and adopted in State v. Fritz, 105 N.J. 42 (1987). "The defendant
must demonstrate first that counsel's performance was deficient,
i.e., that 'counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693). The defendant must overcome a "strong presumption
that counsel rendered reasonable professional assistance." Ibid.
(quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694). Second, "a defendant must also establish
that the ineffectiveness of his attorney prejudiced his defense. 9 A-1426-14T2 'The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" Id. at 279-80 (quoting
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698).
The United States and New Jersey Constitutions permit a brief
investigative stop of a vehicle based on reasonable suspicion
"that an offense, including a minor traffic offense, has been or
is being committed." State v. Amelio, 197 N.J. 207, 211 (2008)
(quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174
N.J. 351 (2002)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402,
173 L. Ed. 2d 1297 (2009). An investigatory stop "is valid if it
is based on specific and articulable facts which, taken together
with rational inferences from those facts, give rise to a
reasonable suspicion of criminal activity." State v. Mann, 203
N.J. 328, 338 (2010) (quoting State v. Pineiro, 181 N.J. 13, 20
(2004)). "The burden is on the State to demonstrate by a
preponderance of the evidence that it possessed sufficient
information to give rise to the required level of suspicion."
Amelio, supra, 197 N.J. at 211.
Reasonable suspicion of "[a] motor vehicular violation, no
matter how minor, justifies a stop [even] without any reasonable
suspicion that the motorist has committed a crime or other unlawful
10 A-1426-14T2 act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div.
2011). "To satisfy the articulable and reasonable suspicion
standard, the State is not required to prove that the suspected
motor-vehicle violation occurred." State v. Locurto, 157 N.J.
463, 470 (1999). That is, "the State need prove only that the
police lawfully stopped the car, not that it could convict the
driver of the motor-vehicle offense." State v. Heisler, 422 N.J.
Super. 399, 413 (App. Div. 2011) (quoting State v. Williamson, 138
N.J. 302, 304 (1994)). Also, the State must show an officer had
an objectively reasonable belief a traffic violation occurred.
State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005).
However, the "fact that information an officer considers is
ultimately determined to be inaccurate . . . does not invalidate
a seizure." State v. Pitcher, 379 N.J. Super. 308, 318 (App. Div.
2005), certif. denied, 186 N.J. 242 (2006).
A PCR court need not grant an evidentiary hearing unless "a
defendant has presented a prima facie [case] in support of post-
conviction relief." State v. Marshall, 148 N.J. 89, 158
(alteration in original) (quoting State v. Preciose, 129 N.J. 451,
462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L.
Ed. 2d 88 (1997). "To establish such a [prima facie] case, the
defendant must demonstrate a reasonable likelihood that his or her
claim will ultimately succeed on the merits." Ibid. The court
11 A-1426-14T2 must view the facts "in the light most favorable to defendant."
Ibid. (quoting Preciose, supra, 129 N.J. at 462-63); accord R.
3:22-10(b).
Defendant argues his "trial counsel failed to adequately
investigate the case." He explains, "[A]ny meaningful
investigation would have demonstrated that what Officer Griffith
testified to was improbable, if not impossible." Considering the
private investigator's report "in the light most favorable to
defendant," Ibid. (quoting Preciose, supra, 129 N.J. at 462-63),
we agree and remand for an evidentiary hearing.
The private investigator's report directly contradicts
Sergeant Griffith's suppression hearing testimony at the
suppression hearing. In order to admit the cocaine and defendant's
confession into evidence, the trial court had to find Sergeant
Griffith had a reasonable suspicion the vehicle violated a motor
vehicle law or the occupants had violated some other law, before
he pulled over the vehicle. See Bernokeits, supra, 423 N.J. Super.
at 370. Considering Sergeant Griffith's explanation of the
circumstances causing him to stop the vehicle and the report of
defendant's investigator, the record shows "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Parker,
12 A-1426-14T2 supra, 212 N.J. at 279-80 (quoting Strickland, supra, 466 U.S. at
694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Assuming the truth of the private investigator's report,
trial counsel's failure to investigate the credibility of Sergeant
Griffith's basis for pulling over the vehicle was unreasonable,
because any reasonable jury would convict defendant once the trial
court admitted the cocaine and his confession. Defendant's defense
centered on the suppression of the drugs and defendant's
confession. Without investigating the credibility of Sergeant
Griffith's account of why and how Sergeant Griffith arrested him,
his counsel was not functioning as the "'counsel' guaranteed the
defendant by the Sixth Amendment." Parker, supra, 212 N.J. at 279
(quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693).
Defendant also argues the PCR court should have considered
the email from the ophthalmologist. We disagree. N.J.R.E. 702
and 703 frame this court's analysis for determining the
admissibility of expert testimony. N.J.R.E. 702 identifies when
expert testimony is permissible and requires the experts to be
qualified in their respective fields. N.J.R.E. 703 addresses the
foundation for expert testimony. Expert opinions must "be grounded
in 'facts or data derived from (1) the expert's personal
observations, or (2) evidence admitted at the trial, or (3) data
13 A-1426-14T2 relied upon by the expert which is not necessarily admissible in
evidence but which is the type of data normally relied upon by
experts.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting
Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . .
which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other
data.'" Id. at 53-54 (alteration in original) (quoting Polzo,
supra, 196 N.J. at 583). Therefore, an expert is required to
"'give the why and wherefore' that supports the opinion, 'rather
than a mere conclusion.'" Id. at 54 (quoting Borough of Saddle
River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net
opinion rule directs "that experts 'be able to identify the factual
bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are
reliable.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127
N.J. 404, 417 (1992)). In short, the net opinion rule is "a
prohibition against speculative testimony." Harte v. Hand, 433
N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer,
301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154
N.J. 607 (1998)). The email lacks any reference to the facts of
this case, so it is a "net opinion." Townsend, supra, 221 N.J.
36, 53-54 (quoting Polzo, supra, 196 N.J. at 583).
14 A-1426-14T2 Defendant further argues the email shows Sergeant Griffith
lacked probable cause to arrest defendant "based solely on the
appearance of dil[a]ted pupils when a flashlight was flashed at
their eyes." The record does not support defendant's argument
because Sergeant Griffith arrested him only after he asked him to
exit the vehicle and saw he "was very unsteady on his feet,
swaying, sagging."
Defendant next argues, "[B]oth his trial and appellate
counsel were ineffective in failing to argue that the stop of the
vehicle . . . was a result of racial profiling." We disagree.
Nothing in the trial or appellate record supports an argument that
Sergeant Griffith was racially motivated to pull the vehicle over,
so defendant's trial and appellate counsel reasonably declined to
raise the argument. See Parker, supra, 212 N.J. at 279 (quoting
Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.
2d at 694).
Defendant contends his trial and appellate counsel should
have argued Sergeant Griffith arrested him without probable cause
that he was under the influence of a controlled dangerous
substance. Again, we disagree. N.J.S.A. 2C:35-10(b) states, "Any
person who uses or who is under the influence of any controlled
dangerous substance, or its analog, for a purpose other than the
15 A-1426-14T2 treatment of sickness or injury as lawfully prescribed or
administered by a physician is a disorderly person."
Sergeant Griffith observed defendant had dilated pupils that
reacted slowly to light. Based on his training and experience,
this was consistent with the use of controlled dangerous
substances. Sergeant Griffith also noticed defendant was "very,
very . . . hyper," and defendant then inexplicably began to open
his pants. When Sergeant Griffith asked defendant to exit the
vehicle, he observed defendant "very unsteady on his feet, swaying,
sagging" after he exited the vehicle. Sergeant Griffith's training
and experience told him that defendant's behavior was consistent
with the use of controlled dangerous substances. Defendant's
actions gave Sergeant Griffith probable cause to believe he was
under the influence of a controlled dangerous substance, contrary
to N.J.S.A. 2C:35-10(b). Defendant's trial and appellate counsel
reasonably declined to raise this argument. See Parker, supra,
212 N.J. at 279 (quoting Strickland, supra, 466 U.S. at 689, 104
S. Ct. at 2065, 80 L. Ed. 2d at 694).
Defendant's third point simply restates his first two in
general terms. He writes, "[T]rial counsel inadequately
investigated and prepared for trial. In particular, . . . trial
counsel was ineffective in failing to prepare a meaningful attack
on the credibility of the arresting officer." We agree with
16 A-1426-14T2 defendant insofar as the PCR court should have held an evidentiary
hearing to determine whether defendant's trial counsel should have
investigated whether Sergeant Griffith had reasonable suspicion
to pull over the vehicle, as the private investigator's report
disputes. After the trial court admitted the cocaine and
defendant's admission, any attack on Sergeant Griffith's
credibility would not have had a reasonable probability of changing
the result of the trial. See Parker, supra, 212 N.J. at 279-80
(quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068,
80 L. Ed. 2d at 698). We decline to adopt defendant's broader
argument.
Defendant's final point asserts the PCR court erred by denying
his petition without affording PCR counsel the opportunity to
present oral argument. We agree. As we previously noted in State
v. Mayron, 344 N.J. Super. 382, 385-87 (App. Div. 2001), "[w]hether
oral argument before the [PCR] court is necessary and appropriate
is currently left to the sound discretion of that court[;]"
however, "that discretion should be generally exercised in favor
of oral argument." In Parker, supra, 212 N.J. at 283, our Supreme
Court noted its "agreement with the statement in Mayron . . . ,
that there is a strong presumption in favor of oral argument in
connection with an initial petition for post-conviction relief."
Vacated and remanded. We do not retain jurisdiction.
17 A-1426-14T2 18 A-1426-14T2