AMIN v. DAVIS et al

Filing 13

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/28/2013. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
RASHEED AMIN,
:
:
Petitioner,
:
:
v.
:
:
EVELYN DAVIS, Warden, et al.,
:
:
Respondents.
:
_________________________________________ :

Civ. No. 11-3312 (JBS)

OPINION

APPEARANCES:
RASHEED AMIN
312237C/606757
Bayside State Prison
P.O. Box F-1
Leesburg, NJ 08327
Petitioner pro se
J. VINCENT MOLITOR
Cape May County Prosecutor
4 Moore Road
DN-110 Central Mail Room
Cape May Court House, NJ 08210
Respondents
SIMANDLE, Chief Judge:
I.

INTRODUCTION

Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of various distributing
and conspiracy to distribute controlled dangerous substances offenses. He is currently serving a
sentence of twenty years imprisonment with a ten-year parole disqualifier. Petitioner raises six
claims in this habeas petition; specifically:

1. Due process violation when the trial court permitted a detective to testify that she
obtained a photograph of petitioner from the Department of Corrections;
2. Due process violation when the trial court failed to charge the jury with a limiting
instruction concerning the testimony that petitioner’s photograph was obtained from the
Department of Corrections;
3. Due process violation when the trial court failed to grant a mistrial when it improperly
permitted expert testimony;
4. Due process violation when the trial court failed to suppress wiretap recordings;
5. Due process violation when the trial court failed to grant petitioner a mistrial due to the
prosecutor’s improper remarks during summation; and
6. Due process violation when the trial court failed to adequately respond to the jury’s
request for written jury instructions.
For the following reasons, the habeas petition will be denied.
II.

FACTUAL AND PROCEDURAL BACKGROUND1

On March 30, 2006, Detective Katherine Curtin of the Cape May
County Prosecutor’s Office [FN 1] began an undercover
investigation regarding Steven Hawk, a/k/a defendant Rasheed
Amin. On that date, she obtained a photograph of defendant from
the Department of Corrections (DOC) that she used to identify
defendant and made the first of four hand-to-hand purchases of
cocaine directly from him.
[FN 1] In March 2006, Curtin was a “grant employee”; she was
hired as a full-time employee in June 2006 and given the title of
detective at that time.
At the time of the first purchase, Curtin paid defendant $50 for
.304 grams of cocaine. Defendant gave her his telephone number
to use to contact him for additional purchases.
1

The factual background is taken from the Superior Court of New Jersey, Appellate Division
opinion on petitioner’s direct appeal that was decided on July 9, 2010. (See Dkt. No. 12-7.)
2

Using that telephone number, Curtin arranged a second purchase of
cocaine from defendant for $100 on April 7, 2006. They met in a
motel parking lot. A second motor vehicle pulled up; defendant
went to that motor vehicle and returned to Curtin’s vehicle, where
he provided her with .732 grams of cocaine.
The third purchase occurred on April 19, 2006, at a shopping
center parking lot. Curtin testified that defendant advised her that
they had to wait for “his girl, [that] she was going to be bringing
the stuff over, the stuff being the drugs, the cocaine.” A motor
vehicle arrived and co-defendant Keisha Jones exited and handed
defendant a clear plastic bag containing 1.761 grams of cocaine.
Curtin paid defendant $100 for the cocaine.
Curtin contacted defendant to arrange the fourth hand-to-hand
transaction on April 26, 2006. Curtin testified that she requested
$250 worth, or a quarter-ounce of cocaine, and gave him the
money.
Defendant told her that he was going to take her “to his boys to get
a heavier bag” and drove them to a drug store in North Cape May.
A red Ford Taurus with two unidentified males pulled up.
Defendant walked to the passenger side of the vehicle, stayed there
briefly, and returned to Curtin with the cocaine.
When Curtin contacted defendant to arrange for a fifth purchase,
he replied that he was in North Carolina but that he could set it up
and “Angel” would be able to supply her. Defendant later called
her, advised that he had spoken to Angel, and told her where to
meet him. [FN 2] On May 5, 2006, Angel arrived at the
designated meeting place, left his vehicle, approached Curtin’s
vehicle and entered. She asked if he was Angel; he answered
affirmatively, and they discussed the drug purchase. Curtin gave
him $100 and he gave her 1.97 grams of cocaine.
[FN 2] Angel was later identified as co-defendant Randy L.
Lewin.
Curtin called defendant on May 11, 2006 to arrange a sixth
purchase. In a tape-recorded conversation, she asked him to
contact Angel because he was not returning her calls. Defendant
agreed to do so. After contacting Angel at a telephone number
given to her by defendant, they met at a K-mart parking lot. A red
Taurus pulled in to the parking lot with two males, one of whom
was Angel. Curtin walked to the passenger side of his vehicle,
where she purchased an additional quantity of cocaine for $100.
3

When Curtin was unsuccessful in attempting to contact Angel for
another purchase, she again called defendant in North Carolina on
May 19, 2006. In this tape-recorded conversation, Curtin
negotiated for the purchase of an eight-ball, or one-eighth ounce of
cocaine. Angel later called her and told her to call when she was
ready to meet with him. They arranged to meet at a shopping mall
parking lot, where Curtin purchased 3.193 grams of cocaine for
$150.
Defendant was indicted [FN3] on seven counts of third-degree
distribution of less than one-half ounce of cocaine, N.J.S.A. 2C:355(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts one, two, three, five,
six, eight, ten); four counts of second-degree distribution of
cocaine in a quantity of one-half ounce or more, N.J.S.A. 2C:355(a)(1) and N.J.S.A. 2C:35(b)(2) (count twelve); and with being
the leader of a narcotics trafficking network, N.J.S.A. 2C:35-3
(count thirteen) (the kingpin count).
[FN 3] Co-defendant Keisha Jones was indicted for distribution of
cocaine (count three) and conspiracy to distribute cocaine (count
four). Randy Lewin was indicted on two counts of distribution
(counts six and eight) and two counts of conspiracy to distribute
cocaine (counts seven and nine). Co-defendants Lonny R. Adams,
Ray Rogers, Jaimi L. Hess and Pamela A. Randazzo were each
indicted on two counts of possession of cocaine, N.J.S.A. 2C:3510(a)(1) (counts fourteen and fifteen).
Defendant moved for the suppression of his tape-recorded
conversations with Curtin on the grounds that Curtin was not an
“investigator or law enforcement officer” as defined in N.J.S.A.
2A:156A-2(f); that as a result, the State was required and failed to
obtain the prior written approval of the Attorney General, the
county prosecutor, or their designee, for recording the conversation
pursuant to N.J.S.A. 2A:156A-4(c). Defendant also moved for the
dismissal of the kingpin count and for the suppression of
statements made by co-defendant co-conspirators pursuant to
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004). The trial court denied the motions.
There was also a pretrial discussion concerning the photograph
Curtin obtained from the DOC and used to identify defendant. The
prosecutor acknowledged that certain information on the
photograph was prejudicial to defendant and should be redacted.
Defense counsel requested further that the photograph should be
excluded from evidence. The prosecutor maintained that the
4

photograph was necessary to the State’s proof of identification.
Defense counsel argued that it was unnecessary because “[w]e
have all these other transactions. She’s going to identify him in all
other transactions. It’s not an ID case.” The court ruled that the
state would be permitted to use a redacted photograph, provided
there was no reference or description of the source of the
photograph.
Defendant was acquitted on the kingpin count and convicted on
counts one through twelve.
(Dkt. No. 12-7 at p. 2-6.)
Petitioner appealed his conviction to the Superior Court of New Jersey, Appellate
Division. The Appellate Division affirmed on July 9, 2010. (See id.) Petitioner then filed a
petition for certification to the New Jersey Supreme Court. On November 4, 2010, the New
Jersey Supreme Court summarily denied the petition for writ of certification. (See Dkt. No. 128.)
On June 8, 2011, petitioner filed the instant federal habeas petition. Respondent has filed
an answer in opposition to the petition.
III.

APPLICATION LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state
court can only be granted for violations of the Constitution or laws or treaties of the United
States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers, 208 F.3d 414,
415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas
corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy,
521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any
claim decided on the merits in the state court proceedings unless the state court’s adjudication of
the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable
5

application of, clearly established federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,
538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’
under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the
state court renders its decision.” Id. (citations omitted). A federal habeas court making an
unreasonable application inquiry should ask whether the state court’s application of clearly
established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,
409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly
deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster, - U.S. -, 131 S. Ct. 1388, 1398 (2011).
The petitioner carries the burden of proof and with respect to review under § 2254(d)(1), that
review “is limited to the record that was before the state court that adjudicated the claim on the
merits.” Id.
In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539
F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting

6

the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Additionally, AEDPA deference is not excused when state courts issue summary rulings on
claims as “[w]hen a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.” Harrington v.
Richter, - U.S. -, 131 S. Ct. 770, 784-85 (2011) (citing Harris v. Reed, 489 U.S. 255, 265
(1989)).
IV.

DISCUSSION

A. Claim I – Department of Corrections Photograph
In Claim I, petitioner argues that his due process rights were violated when the trial court
permitted Curtin to testify that she obtained a photograph of petitioner from the Department of
Corrections. Petitioner contends that this testimony “sent a clear message to the jury that [he]
was [a] convicted felon.” (Dkt. No. 1 at p. 12.) The last reasoned state court decision on this
Claim was from the Appellate Division which analyzed this Claim as follows:
We turn first to the evidence relating to a photograph of defendant
obtained from the DOC. As defense counsel correctly pointed out,
identification was not a critical issue in a case involving multiple
hand-to-hand transactions with an undercover officer and taperecorded conversations. Prior to trial, the trial court correctly set
parameters for the State’s use of the photograph, i.e., that there be
no reference to the source of the redacted photograph. Despite this
explicit instruction, Curtin mentioned twice that she obtained the
photograph from “Corrections.” Defendant argues that the trial
court erred in permitting such testimony, in denying a motion to
strike the testimony and in failing to give the jury a limiting
instruction regarding this testimony.
It is a mischaracterization to argue that the trial court “permitted”
such testimony because the trial court unequivocally prohibited the
State from making any reference to the origin of the photograph
and, in fact, no references were elicited during the direct

7

examination of any prosecution witness. The first reference came
during a vigorous cross-examination of Curtin:
Q: Now again on March 30, 2006[,] when you
began this investigation there’s no photos, there’s
no tapes, there’s no fingerprints on any drugs,
there’s no taping of any sort, correct?
A: I actually obtained a photograph from the
correction center and saw Hawk prior to the deal.
Defense counsel did not immediately object to this testimony but
instead, directed his follow-up questions to clarify there were no
photographs of any offense. The first objections came after a
recess. Defense counsel stated that while he had chosen not to
make an objection and get into that at that point,” he now moved to
strike that testimony and asked the court to instruct the jury “in
reference to where photos come from and how they get photos.”
Defense counsel also faulted the witness, stating, “and she knows
not to say Department of Corrections but she said Department of
Corrections.” The trial judge denied the motion to strike and noted
that, as he had earlier indicated to counsel, he would give that
charge at the trial’s conclusion, [FN 4] which in fact he did.
[FN 4] The court gave the following charge:
I charge you now on photographs. There has been referenced in
this record and indeed introduced into evidence a photograph of
the defendant. With reference to that photograph which was
produced by a witness on behalf of the State you may determine
that the photograph appears to have been taken by a law
enforcement agency or some other governmental entity. You are
not to consider the fact that any governmental agency that may
have obtained such a photograph of the defendant as prejudicing
the defendant in any way. The photograph is not evidence that this
defendant has ever been arrested or convicted of any crime. Such
photographs, as here entered [in] this record, come into the hands
of law enforcement and other governmental entities, agencies,
departments for a variety of reasons, including but not limited to
driver’s license applications, passports, ABC or Alcohol Beverage
Control identification cards, now county identification cards,
various forms of government employment, private employment
requiring state regulation including but not limited to casino
license applications, security guard applications, et cetera, or from
a variety of other sources totally unconnected with criminal
activity. So again, the fact and the nature of the photograph of the
defendant is not to be considered by you as prejudicing the
defendant to any extent, you should draw no negative inferences
8

from the photograph or your perception of the type of photograph
that it is or may be. See Model Jury Charge (Criminal), “IdentityPolice Photos” (1992).
Defense counsel pressed further:
[COUNSEL]: Again, why did the witness have to
say Department of Corrections? She could have
said I had a photo.
COURT: She was asked under oath a blanket
question that as of March 30, 2006 you had no
photos, tapes or fingerprints. She answered
obviously that she had a DOC photo. You opened
the door, Counsel.
At best, Curtin’s reference to “Corrections” was the gaffe of an
inexperienced witness; at worst, it was a calculated measure to take
advantage of a sweeping question by gratuitously injecting
negative information about defendant in response. In either case, it
would have been prudent for the court to address Curtin directly to
confirm that she was aware of the court’s prior order and
understood her obligation to comply with that order. If that had
been done, even without the request of counsel, it is less likely that
Curtain would have made a second reference to “the Corrections
photograph:”
Q: Do you, do you know what Mr. Hawk’s real
name is?
A: Steven Harrell Hawk, sir.
Q: Steven Harrell Hawk?
A: He goes also by Rasheed Amin.
Q: Well, Rash[ee]d Amin, is that his real name?
A: I know him as Steven Harrell Hawk. That is
how I positively identified him off a corrections
photograph.
Defense counsel did not object to this reference.
The references to “Corrections” were improper because they
“carr[y] the connotation that defendant was involved in prior
criminal conduct.” State v. Miller, 159 N.J. Super. 552, 562 (App.
Div.), certif. denied, 78 N.J. 329 (1978). Defense counsel’s
objection provided the court with an opportunity to address the
issue by striking the testimony or giving a curative instruction
while the witness was still on the stand. The court erred in failing
to do either.
9

However, references to a photograph as a “mug shot” or otherwise
obtained from police sources have been found to be harmless error
where the reference is solitary and fleeting and accompanied by an
appropriate charge to the jury. See, e.g., Miller, supra, 159 N.J.
Super. at 562. See also State v. Harris, 156 N.J. 122, 173 (1998);
State v. Mays, 321 N.J. Super. 619, 632 (App. Div.) (reference to
Rahway State Prison harmless), certif. denied, 162 N.J. 132
(1999); State v. Porambo, 226 N.J. Super. 416, 426 (App. Div.
1988). The error may be harmless even when the evidence is not
just a fleeting reference in testimony but rather, the actual
admission of a photograph of defendant in prison garb into
evidence. Compare State v. Burton, 309 N.J. Super. 280, 289
(App. Div.) (admission of photograph of defendant in prison garb
as part of photographic array used to identify defendant harmless
error in light of “overwhelming evidence of guilt.”), certif. denied,
156 N.J. 407 (1998), with State v. Taplin, 230 N.J. Super. 95, 98100 (App. Div. 1988) (where identification was not an issue,
admission of “mug shot” of defendant required reversal of
conviction).
In reviewing the relevant circumstances here, we note that there
were two references, rather than a solitary reference to
“Corrections” as the source of the photograph Curtin used to
identify defendant. These references were, however, still fleeting.
See Porambo, supra, 226 N.J. Super. at 426 (harmless error found
despite more than one reference that could be construed as
reference to defendant’s prior involvement in criminal history).
Although the court failed to give an immediate curative instruction,
the appropriate instruction was included in the charge to the jury.
We have scrutinized these errors more closely because
identification was not an issue here. However, we are satisfied
that, because the evidence of defendant’s guilt of the crimes for
which he was convicted was overwhelming, any error here in
failing to strike the testimony or give a curative instruction when
requested was harmless. R. 2:10-2.
(Dkt. No. 12-7 at p. 8-14.)
Claim I is not cognizable on federal habeas review to the extent petitioner asserts that the
state court erred as a matter of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(stating that “it is not the province of a federal habeas court to reexamine state-court
determinations of state-law questions”). The due process inquiry that is applicable to Claim I is
10

whether the state court’s ruling was so arbitrary or prejudicial that it rendered the trial
fundamentally unfair. See Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994); see also Keller v.
Larkins, 251 F.3d 408, 413 (3d Cir. 2001) (noting that to show that an evidentiary error rises to
the level of a due process violation, a petitioner must show “that it was of such magnitude as to
undermine the fundamental fairness of the entire trial”). The United States Supreme Court has
“defined the category of infractions that violate ‘fundamental fairness’ very narrowly.” Dowling
v. United States, 493 U.S. 342, 352 (1990).
Additionally, even if an evidentiary ruling amounts to a Constitutional violation, a federal
habeas court applies the harmless error test. See Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir.
1994). Under the applicable harmless error test, a habeas petitioner must demonstrate
constitutional error that resulted in “actual prejudice” in order to obtain relief from a federal
court; which asks whether the error had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Eley v. Erickson, 712 F.3d 837 (3d Cir. 2013) (citing Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)). Indeed, the Supreme Court has stated that “in §
2254 proceedings a court must assess the prejudicial impact of constitutional error in a statecourt criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht, supra,
whether or not the state appellate court recognized the error and reviewed it for harmlessness
under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman [v. California],
386 U.S. 18 [1967].” Fry v. Pliler, 551 U.S. 112, 121-22 (2007); see also Bond v. Beard, 539
F.3d 256, 275-76 (3d Cir. 2008) (“Fry instructs us to perform our own harmless error analysis
under Brecht . . . rather than review the state court’s harmless error analysis under the AEDPA
standard.”) In reviewing the record, if a federal habeas court is in “grave doubt” as to whether
the error had a substantial and injurious effect or influence in determining the jury’s verdict, then

11

the error was not harmless. See Adamson v. Cathel, 633 F.3d 248, 260 (3d Cir. 2011) (citing
O’Neal v. McAninch, 513 U.S. 432, 438 (1995)).
As the state court noted, the trial court gave a limiting instruction to the jury on the use of
the photos. The jury is presumed to have followed this instruction. See Weeks v. Angelone, 528
U.S. 225, 234 (2000). Moreover, the first mention of the corrections photograph was in response
to a series of questions by defense counsel on cross-examination that implied Curtin had no
photo of defendant, and thus did not have a positive identification in her investigation, as to
which the defendant, not the prosecution, opened the door to her correct response about the
photo. Similarly, Curtin’s second mention was in reply to cross-examination that attempted to
challenge the witness’s knowledge of defendant’s name and identity, as to which the witness
properly replied that she was satisfied that she knew his name from the positive identifiers in the
corrections photo. Each response was pertinent and probative to meeting the issue of
defendant’s identity and name as raised by the defense.
Additionally, the case against petitioner was strong as Curtin’s testimony and recordings
directly implicated petitioner in the multiple instances of the crimes for which he was convicted
as stated in supra Part II. Any purported error rising to a constitutional violation was harmless
under these circumstances. Accord Peace v. Hendricks, No. 03-5987, 2005 WL 3406405, at *67 (D.N.J. Dec. 12, 2005) (finding harmless error when state court improperly admitted
photographs of petitioner which stated “Sheriff’s Department Camden County New Jersey
Correctional Facility” where there was overwhelming evidence of petitioner’s guilt and the state
court issued a limiting instruction to the jury concerning the manner in which the photo could be
used). Therefore, Claim I will be denied.
B. Claim II – Department of Corrections Photograph Jury Instructions

12

In Claim II, petitioner contends that his due process rights were violated because the trial
court failed to issue a curative instruction immediately after Curtin mentioned the Department of
Corrections photo. He also claims that the curative instruction that the trial court gave during
closing argument was insufficient as it did not mention the Department of Corrections.
This Claim is related to Claim I. The Appellate Division determined that any potential
prejudice towards petitioner regarding Curtin’s testimony concerning the Department of
Corrections photograph was harmless as the trial court gave an appropriate limiting instruction to
the jury and the case against petitioner was strong. As explained supra, any Constitutional error
by permitting Curtin to mention the Department of Corrections photograph was harmless.
Furthermore, petitioner’s argument that the limiting instruction was insufficient because
it did not mention the “Department of Corrections” lacks merit. “Habeas relief for a due process
violation concerning an absent or defective instruction is available when the absence of an
instruction, or a defective instruction, infects the entire trial with unfairness.” See Albrecht v.
Horn, 485 F.3d 103, 129 (3d Cir. 2007) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
As cited above, the jury was specifically instructed that the fact that a photograph may have been
from a governmental agency was not evidence that petitioner had ever been arrested or convicted
of any crime and that it was not to prejudice the defendant in any way. (See Dkt. No. 12-18 at p.
71-72.) The fact that the limiting instruction did not specifically mention the “Department of
Corrections” as the applicable governmental agency is immaterial. A mention of the
“Department of Corrections” in the trial judge’s instruction could have reinforced the harm that
the judge sought to cure, while the judge’s reference to a governmental photo made the necessary
point in less graphic fashion. The jury is presumed to have followed the instructions given by

13

the trial judge, see Weeks, 528 U.S. at 234, that the photograph was not evidence that petitioner
had been arrested or convicted and that it should not prejudice petitioner in any way.
Accordingly, for these reasons, Claim II will be denied.
C. Claim III – Expert Testimony
In Claim III, petitioner argues that his due process rights were violated when the trial
court did not grant a mistrial after Lieutenant Frame improperly testified that she believed
petitioner was above a street level drug dealer. The Appellate Division analyzed this Claim as
follows:
Lieutenant Lynn Frame of the Cape May County Prosecutor’s
Office was permitted to testify that, during the investigation, a
decision was made to record conversations between defendant and
Curtin because “we suspected that the suspect or the target was a
little bit more advanced and more substantial than the street level
dealer.” After an objection that she was “giving a conclusion of
the status of a defendant” was overruled, she was permitted to
testify as follows:
Q: Upon what did you base your decision that the
conduct of Mr. Hawk or the subject was more than
just a street level operation?
A: It was a number of factors. Beginning with the
number of transactions that occurred, the fact that
the amount of narcotics that was transacted was
larger than a regular street level deal, up to, I
believe it was up to almost a quarter ounce if not
more at that time. That indicates that the target is
able to provide larger quantities and is more than
just a street level dealer. And also the fact that he
was orchestrating transactions through other people.
[(Emphasis added).]
At this point, defense counsel posed the following objection:
This witness who has not been qualified just gave
an opinion, that’s first. Second, she made a
conclusion without being an expert to the jury. So
I’d ask that her testimony be stricken and ask for a

14

mistrial. She just gave a conclusion as to the crime
attributed to Mr. Hawk in this matter.
The phrasing of the question by the prosecutor improperly asked
the witness the reasons for her “decision” that defendant “was
more than just a street level operation.” See State v. Summers, 176
N.J. 306, 314 (2003) (Expert opinion is not objectionable “as long
as the expert does not express his opinion of defendant’s guilt but
simply characterizes defendant’s conduct based on the facts and
evidence in light of his specialized knowledge[.]”) (emphasis
added) (quoting State v. Odom, 116 N.J. 65, 79 (1989)). However,
even if improper expert testimony is elicited, a reversal of
defendant’s conviction is warranted only if that testimony was
sufficiently prejudicial to have the capacity to bring about an
unjust result. State v. Nesbitt, 185 N.J. 504, 518-19 (2006); State
v. Thompson, 405 N.J. Super. 76, 81 (App. Div., certif. denied, 199
N.J. 133 (2009)).
The verdict here presents unassailable proof that the jury was
unswayed by this testimony because they only convicted defendant
of the “street level” charges of conspiracy and distribution and
acquitted him of the kingpin charge. Therefore, we conclude that
this testimony was not “clearly capable of producing an unjust
result.” R. 2:10-2. [FN 5]
[FN 5] In light of our conclusion that any error here was harmless,
we need not address the State’s failure to qualify Frame as an
expert.
(Dkt. No. 12-7 at p. 14-16.)
Evidentiary rulings at trial are not subject to habeas review unless the ruling “caused
‘fundamental unfairness’ in violation of due process.” Kontakis, 19 F.3d at 120. Furthermore,
an evidentiary ruling does not give rise to federal habeas relief unless it had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Id.
In this case, any error by the trial court in failing to strike this testimony as impermissible
expert testimony was harmless. Frame’s purported expert testimony related to the charge that
petitioner was a drug kingpin. However, petitioner was acquitted of this charge. Accordingly,
the admission of this purported impermissible expert testimony did not have a substantial and
15

injurious effect on the jury’s verdict due to his acquittal on the kingpin charge. Moreover, the
jury itself had the evidence of defendant’s drug dealings that pointed to his being a drug
distributor who can quickly fill drug orders through his direction to others, and this evidence was
before the jury independently of Lt. Frame’s testimony. Therefore, Claim III will be denied.
D. Claim IV – Wiretap Recordings
In Claim IV, petitioner argues that his due process rights were violated when the trial
court failed to suppress the wiretap recordings of the telephonic conversations between Curtin
and petitioner because Curtin was not a law enforcement officer at the time and the state failed to
obtain the approval of the Attorney General to record the conversations. Petitioner asserts in his
petition that the State argued during the suppression hearing that Curtin was an undercover
detective, which placed her within the exception for the State not seeking Attorney General
wiretap approval under N.J. STAT. ANN. § 2A:156A-4.b.2 Petitioner argues in his federal habeas
petition that Curtin was only a grant employee which did not place her within the definition of an
“investigative or law enforcement officer” set forth in N.J. STAT. ANN. 2A:156A-2.f.3
Petitioner raised this Claim on direct appeal. The Appellate Division denied this Claim
without discussion after determining that it lacked sufficient merit to warrant discussion.
Claim IV essentially asserts a Fourth Amendment claim. In Stone v. Powell, 428 U.S.
465, 494-95 (1976), the Supreme Court held that:
This statutory provision provides that, “It shall not be unlawful under this act for [a]ny
investigative or law enforcement officer to intercept a wire, electronic or oral communication,
where such officer is a party to the communication or where another officer who is a party to the
communication requests or requires him to make such interception[.]” N.J. STAT. ANN.
2A:156A-4.b
2

3

This statutory provision states that an “’Investigative or law enforcement officer’ means any
officer of the State of New Jersey or of a political subdivision thereof who is empowered by law
to conduct investigations of, or to make arrests for, any offense enumerated in section 8 of
P.L.1968, c. 409 (C.2A:156A-8) and any attorney authorized by law to prosecute or participate
in the prosecution of any such offense[.]” N.J. STAT. ANN. 2A:156.A-2.f.
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where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not
be granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at
his trial. In this context the contribution of the exclusionary rule, if
any, to the effectuation of the Fourth Amendment is minimal and
the substantial societal costs of application of the rule persist with
special force.
“[T]here may be instances in which a full and fair opportunity to litigate was denied to a habeas
petitioner,” such as where a structural defect in the system prevented the claim from being heard.
Marshall v. Hendricks, 207 F.3d 36, 82 (3d Cir. 2002). However, “[a]n erroneous or summary
resolution by a state court of a Fourth Amendment claim does not overcome the [Stone] bar.” Id.
(citation omitted).
Petitioner was given a full and fair opportunity to argue that the trial court should have
suppressed the recordings. The Appellate Division denied this Claim and determined that it
lacked sufficient merit to warrant discussion. To the extent that petitioner argues that the state
courts improperly decided his Fourth Amendment argument, this is not sufficient to overcome
the Stone bar. Accord Marshall, 307 F.3d at 82.
Additionally, to the extent that petitioner can also be said to argue that the wiretap was
unauthorized under state law, any such argument also does not merit granting federal habeas
relief as “it is not the province of a federal habeas court to reexamine state-court determinations
of state-law questions.” Estelle, 502 U.S. at 67-68; see also Keller v. Larkins, 251 F.3d 408, 416
n.2 (3d Cir. 2001) (“A federal habeas court, however, cannot decide whether the evidence in
question was properly allowed under the state law of evidence.”). Accordingly, for the foregoing
reasons, Claim IV will be denied.
E. Claim V – Prosecutorial Misconduct

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In Claim V, petitioner argues that the prosecutor committed misconduct during the course
of his summation. First, petitioner argues that the prosecutor’s remarks were unsupported by the
evidence when he stated that petitioner probably had a lot of customers. Second, petitioner
contends that the prosecutor’s statement that Curtin was trying to purchase as much cocaine as
she could within the financial limits of law enforcement was improper as it was based on pure
speculation. The last reasoned decision on this Claim was from the Appellate Division which
analyzed this Claim as follows:
Defendant argues that his motion for a mistrial should have been
granted based upon improper comments made by the prosecutor in
summation. The remarks specifically complained of are: that
defendant “[p]robably had a lot of customers[,] but we only heard
about one customer. And the one customer was an undercover
police officer[,]” and that the undercover officer was attempting
“to purchase as much as she could within the financial limits of the
task force[.]” The prejudice alleged is that the first comment
suggested that defendant had engaged in other drug transactions
with other customers and that the second comment suggested that
defendant had the capacity to provide significantly higher
quantities of cocaine that those purchased by Curtin.
Arguably, these comments were responsive to defense counsel’s
assertion in summation that defendant was merely “a low level
street dealer.” Still, prosecutors must be cautious not to exceed the
wide latitude accorded the prosecutor in summation, see State v.
Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 522 U.S. 1146,
128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Mayberry, 52
N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673,
21 L. Ed. 2d 593 (1969), by suggesting that defendant is guilty of
criminal conduct beyond that being tried before this jury. See State
v. Farrell, 61 N.J. 99, 103 (1972). However, “[n]ot every instance
of misconduct in a prosecutor’s summation will require a reversal
of a conviction. There must be a palpable impact.” State v. Roach,
146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136
L. Ed. 2d 424 (1996). Reversal is appropriate when the
prosecutor’s conduct is “so egregious that it deprived the defendant
of the right to a fair trial.” State v. Josephs, 174 N.J. 44, 124
(2002). See also Roach, supra, 146 N.J. at 219.

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In this case, to the extent that the prosecutor’s comments can be
construed as suggesting that defendant’s criminal activity was of a
kingpin nature, they were for naught since defendant was acquitted
on that charge. As for the individual counts of distribution and
conspiracy for which he was convicted, the evidence of his guilt
provided by the testimony of the undercover officer who
participated in each of the transactions was compelling. Therefore,
the comments by the prosecutor did not deprive defendant of a fair
trial.
(Dkt. No. 12-7 at p. 16-17.)
A criminal defendant’s due process rights are violated if prosecutorial misconduct
renders a trial fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 182-83 (1986).
A prosecutorial misconduct claim is examined in “light of the record as a whole” in order to
determine whether the conduct “had a substantial and injurious effect or influence” on the jury’s
verdict. See Brecht, 507 U.S. at 638. A “reviewing court must examine the prosecutor’s
offensive actions in context and in light of the entire trial, assessing the severity of the conduct,
the effect of the curative instructions, and the quantum of evidence against the defendant.”
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
Petitioner fails to show that he is entitled to federal habeas relief on this Claim. The
purported misconduct must be assessed in the context of the entire trial. As the state court noted,
petitioner was actually acquitted of the drug kingpin charge to which the prosecutor’s purported
misstatements most likely were related. Additionally, as the state court also noted, the evidence
against petitioner was overwhelming in light of the undercover officer’s testimony which
included petitioner’s involvement in the multiple drug sales. These circumstances lead to a
finding that this Claim lacks merit. Accord United States v. Vitillo, 490 F.3d 314, 330 n.9 (3d
Cir. 2007) (finding that prosecutor’s remarks during cross-examination and summation were
harmless in light of defendant’s overwhelming evidence of guilt). Furthermore, the jury was

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specifically instructed that the summations of counsel are not evidence. Indeed, the jury was
instructed that:
Regardless of what counsel said or I may have said recalling the
evidence in this case it is your recollection of the evidence that
should guide you as judges of the facts. Arguments, statements,
remarks, openings, summations of counsel are not evidence and
must not be treated as evidence. Although the attorneys may point
out what they think important in this case you must rely solely
upon your understanding and recollection of the evidence that was
admitted during the trial.
(Dkt. No. 12-18 at p. 10-11.) The jury is presumed to have followed this instruction. See Weeks
528 U.S. at 234.
Accordingly, for these reasons, the state court denial of relief on this Claim was not an
unreasonable application of clearly established federal law. Claim V will be denied.
F. Claim VI – Written Jury Instructions
In Claim VI, petitioner contends that his due process rights were violated when the trial
court denied the jury’s request to receive written jury instructions. While the jury was
deliberating, it sent the trial judge a note requesting the following, “[w]e would like to be able to
read the statute description of what distribution is, especially pertaining to the attempt to
distribute or assisting in the distribution.” (Dkt. No. 12-18 at p. 92.) Petitioner contends that:
This question concerned the last three alleged [controlled
dangerous substance] sales, when petitioner was in North Carolina
and the sales were between co-defendant Angel and grant
employee Curtin. Without the added weight of cocaine in these
transactions, petitioner could not have been convicted of a second
degree offense.
(Pet. at p. 22.) The trial judge ultimately concluded that it would not be appropriate to provide
the jury with copies of the statute in the jury room. (See Dkt. No. 12-8 at p. 99.) However, the
court recharged the jury on the applicable law orally. (See id. at p. 100-107.)

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Petitioner raised this issue on direct appeal. The Appellate Division denied relief on this
Claim without opinion concluding that it lacked merit.
A claim related to jury instructions must infect the entire trial in order to establish a due
process violation. See Estelle, 502 U.S. at 72; Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
An instruction must be considered in the context of the instructions as a whole and the trial
record. See Estelle, 502 U.S. at 72.
In this case, petitioner’s argument is not that the trial court erred in its actual instructions
to the jury. Instead, he simply argues that the trial court should have provided the jury with
written instructions. However, “the Constitution does not require that jurors receive written jury
instructions.” French v. Roth, No. 96-3848, 1998 WL 171276 at *3 (7th Cir. Feb. 26, 1998);
United States v. Pray, 869 F. Supp. 2d 44, 50-51 (D.D.C. 2012) (holding that because there is no
constitutional right to written copy of jury instructions, oral instructions that adequately convey
defense theory “fulfill a defendant’s due process rights”). Here, the trial judge quite properly reinstructed the jury in the area of law responsive to the jury’s question. Moreover, the Supreme
Court has never suggested that written jury instructions, though perhaps feasible in most courts,
are constitutionally required as part of the due process of law. Accordingly, petitioner has failed
to show that the denial of this Claim was an unreasonable application of clearly established
federal law. Cf. Williams v. Harrison, 368 F. App’x 764, 765 (9th Cir. 2010) (denying habeas
relief where petitioner claimed he was deprived his constitutional rights where trial court gave
oral instructions on duress defense but failed to provide jury written instructions on duress
defense despite emphasizing importance of written instructions because the court’s failure to
provide written instruction did not so infect the entire trial thereby violating petitioner’s due
process rights). Therefore, Claim VI will be denied.

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V.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §
2254. A certificate of appealability may issue “only if the applicant has made 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.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Applying this standard, the Court finds that a certificate of appealability shall not issue
in this case.
VI.

CONCLUSION

For the foregoing reasons, the habeas petition will be denied. A certificate of
appealability shall not issue. An appropriate order will be entered.

DATED: August 28, 2013

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief United States District Judge

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