POTTER v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
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OPINION filed. Signed by Judge Freda L. Wolfson on 6/29/2018. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERIC POTTER,
Petitioner,
v.
THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Respondents.
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Civ. No. 15-8784 (FLW)
OPINION
FREDA L. WOLFSON, U.S.D.J.
I.
INTRODCUTION
Before the Court is the Petition for a writ of habeas corpus by Petitioner Eric Potter,
(“Petitioner” or “Potter”) brought pursuant to 28 U.S.C. § 2254. (ECF No.1.) For the reasons set
forth below, Petitioner’s habeas petition is DENIED, and Petitioner is DENIED a certificate of
appealability.
II.
BACKGROUND
A. Factual Background
The relevant facts are set forth in the opinion of the Superior Court of New Jersey,
Appellate Division, on Petitioner’s direct appeal:
On the evening of April 26, 2010, Officer Eddy Raisin of the Street
Crimes Unit (Unit) of the Asbury Park Police Department met with
a confidential informant who had provided reliable information in
the past. The informant told him that Potter was known to walk
from the Vita Garden Apartments in Asbury Park during the early
morning hours to a house on Bangs Avenue, where he would play
poker on the second floor and sell heroin. To reach Bangs Avenue,
he would cut through a municipal basketball court. The informant
provided a physical description of Potter.
Shortly before 10:00 a.m., on April 27, Raisin met at police
headquarters with other members of his Unit, including Lieutenant
David Desane, Officer Lorenzo Pettway, Officer Adam Mendes,
and Officer Kamil Warraich, as well as members of the Monmouth
County Narcotics Strike Force, including Detectives Todd Rue,
Scott Samis, and Christopher Camilleri. After the meeting, they set
up surveillance sites at the basketball court, Bangs Avenue, and the
street connecting the two, using unmarked police cars.
Warraich and Camilleri’s vehicle was in a parking lot near the
basketball courts. Raisin and Mendes were on the connecting street
and had a clear view of the basketball courts. Desane, Samis, and
Pettway positioned their vehicle so they could view the house on
Bangs Avenue, but they could not observe the basketball court from
their location.
At approximately 11:40 a.m., Raisin observed a man matching
Potter’s description heading from the Vita Garden Apartments
toward the basketball courts. Raisin immediately told Warraich to
drive toward the basketball courts and approach Potter.
Warraich and Camilleri left the parking lot, drove closer to the
courts, and parked. They got out of the vehicle and approached
Potter. While doing so, Warraich positioned himself to Potter’s
right side and Camilleri positioned himself to the left. Warraich
asked Potter for his name and what he was doing in the area.
Before Potter answered, Warraich observed a clear, “Ziploc[-]type”
plastic bag in the front right pocket on the outside of Potter’s jacket.
Although the bag was inside the pocket, it was visible because the
bag created a bulge that kept the pocket open. Warraich could also
see the packages in the bag, which were wrapped in paper and
shaped like a small brick.
Based on his training and experience, including having “seen plenty
of bricks of heroin,” Warraich concluded that the bag contained
drugs. Warraich immediately placed Potter under arrest and
removed the plastic bag from his pocket. The bag contained several
bricks of what was subsequently identified as heroin. A search
incident to the arrest uncovered a second plastic bag in Potter’s left
pocket that also contained several bricks of what proved to be
heroin. Nine unbundled packets of heroin were also recovered.
Following his arrest, Potter was transported to police headquarters,
2
where another search revealed that Potter was carrying $1520 in
cash.
Warraich turned the plastic bags and nine loose packets over to
Officer Raisin. In his investigation report, Raisin recorded his
inventory of the two bags. One of them contained 498 glassine
packets, 298 of which bore the stamp “Candy Girl,” 150 of which
were stamped “Extra Power,” and 50 of which were stamped
“Knockout.” The other bag held 350 glassine packets, 150 of which
were stamped “Candy Girl,” 150 of which bore the stamp “Extra
Power,” and 50 of which were stamped “Knockout.”
At police headquarters, Potter was interviewed by Samis and Raisin.
The interview was videotaped and transcribed. Before the start of
the interview, Samis informed Potter of his Miranda rights. Potter
initialed a Miranda form acknowledging, among other things, that
he was waiving his right to remain silent, his right to consult with
an attorney, and his right to have one present during the interview.
Potter also acknowledged that he had been informed that his
decision to waive his rights was not final and could be revoked at
any time during the interview.
During the interview, Potter admitted that he was told by another
person to pick up the two bags and deliver them to someone he did
not identify. There was one buyer for the larger bag for $2500 and
another for the smaller bags for around $1800. Potter expected to
receive $300 for facilitating the transactions. He told the officers
that he had four or five customers and was averaging a couple of
bundles a day in sales. He also asserted that the quantity he had with
him that day was a lot more than he usually sold. Potter maintained
that he used the money to buy food and support himself.
At the end of the interview, Samis told Potter that they would “let
[him] make phone calls” once they found out what the bail amount
would be. According to Samis, Potter had not asked to make a
phone call prior to that exchange.
State v. Potter, Indictment No. A-1175-12T3, 2015 WL 3843309, at *1–2 (N.J. Super. Ct. App.
Div. June 23, 2015) (footnotes omitted).
B. Procedural History
Following a jury trial, Petitioner was convicted of:
3
[T]hird-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35–10(a)(1) (count one); second-degree possession of
heroin in a quantity of one-half ounce or more with the intent to
distribute, N.J.S.A. 2C:35–5(b)(2) (count two); and third-degree
possession of heroin with the intent to distribute within 1000 feet of
a school, N.J.S.A. 2C:35–7 (count three).
...
[The sentencing judge] imposed a sentence of fifteen years in prison
with seven-and-one-half years of parole ineligibility pursuant to
N.J.S.A. 2C:43–6(f).
Id. at *1–4.
Prior to trial, Petitioner filed several motions:
On December 16, Potter filed a motion seeking to represent himself.
...
The judge ultimately allowed Potter to proceed pro se, but with
standby counsel.
Potter’s attorney had filed a motion to suppress the evidence seized
on the day of his arrest. The judge heard some testimony on that
issue on April 14. Warraich and Raisin testified for the State. The
judge then adjourned the hearing pending disposition of Potter’s
motion to compel production of the personnel records of certain
members of the Asbury Park Police Department and the Monmouth
County Prosecutor’s Office. That motion was denied on May 12.
The motion to suppress resumed on May 26, with testimony by
Camilleri, Samis, Rue, and others. On July 19, following the
presentation of additional evidence, the judge placed an oral
decision on the record. She found that both Warraich and Camilleri
were credible witnesses, and that Warraich was very knowledgeable
about the packaging of narcotics. She concluded that Warraich had
sufficient reasonable suspicion to warrant an investigative stop. The
judge found that Warraich observed Potter carrying drugs in plain
view when he sought to question him, which provided probable
cause for the arrest and the subsequent search.
Potter filed a motion to dismiss the indictment on August 25. The
judge assigned to conduct the trial heard oral argument on the
4
motion on November 3, and issued a written decision and order
denying the motion six days later.
On December 2, Potter filed a motion to suppress the statements he
made to the police following his arrest, arguing (1) that the police
coerced him to make the statement through a promise; (2) that he
was suffering from heroin withdrawal at the time; and (3) that he did
not know he was being videotaped.
The trial judge conducted a hearing on that motion on March 13,
2012. The following day, he issued an order and a written decision.
The judge concluded (1) that Potter had failed to present evidence
of the existence of any promise, much less a promise that overbore
his will, (2) that there was no evidence presented that he was
suffering from heroin withdrawal, and (3) that Potter had no privacy
right with respect to his statement because he had been told it would
be recorded, if not videotaped.
Id. at *2–3.
Petitioner appealed his conviction and sentence. The Appellate Division affirmed on June
23, 2015. Id. The New Jersey Supreme Court denied certification on November 6, 2015. 1 State
v. Potter, 125 A.3d 391 (N.J. 2015). In December 2015, Petitioner filed a habeas petition with this
Court raising eleven grounds for habeas relief:
1. The defendant’s right to be free from unreasonable searches and seizures as guar[a]nteed
by the [F]ourth [A]mendment to the United States Constitution and Art.1, Par.7 of the New
Jersey Cons[t]itution was violated by the unlawful detention and the search of the
defendant. [T]he police officer[]s detained the defendant on the basis of information from
a confidential informant that the police, not the courts decided was reliable without any
corroboration to stop and detain and to [] search the defendant. Without any reasonable
suspicion that the defendant committed a crime. The trial judge that decided the
suppression motion ruled that the stop was a[n] investigative stop.
2. The defendant’s State and Federal Cons[t]itutional Right To A Grand Jury Indictment was
Violated, and the trial court erroneously denied the defendant’s motion to dismiss the
indictment on those grounds. The defendant moved to dismiss the indictment on the
grounds that the state merely proffered hearsay evidence when it could have produced the
arresting officer. Moreover, the indictment was in fact defic[i]ent in providing the
defendant notice. Once the defendant received his discovery he discovered that the
indictment was under indictment No. 10-8-1447 but that the indictment [N]o. on the grand
1
Petitioner does not appear to have filed a petition for post-conviction relief.
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jury transcri[p]ts was 10-7-1307. The defendant also discovered some other documents
with the indictment 10-8-1447 with another defendant’s name on it. And that the
indictment: No. 10-7-1307 belong[ed] to someone else.
3. The instructions to the jury by the trial judge exceeded the bounds of fair comment and
constituted prejudicial error and denied the defendant the right to a fair trial under the
[S]ixth [A]mendment of the United States Constitution and the Fourteenth Amendment of
the United States [Constitution]. And the New Jersey Constitution of 1947. The trial judge
during trial instructed the jury that they were not to consider why the officer[]s stopped the
defendant and that another judge had already ruled that the stop of the defendant was legal.
4. The defendant’s right to due process of law as guar[a]nteed by the Fourteenth Amendment
to the United States Constitution and Art. 1, Par. 1 of the New Jersey constitution was
violated by the trial[] court[’s] erroneous instruction on the law pertaining to the quan[t]ity
requirement for a second degree intent to distribute CDS crime.
5. The defendant’s right to confrontation as guaranteed by the Sixth Amendment to the United
States Constitution and Art. 1, Par. 10 of [the] New Jersey [Constitution] and the
defendant’s right to due process of law as guaranteed by the Fourteenth Amendment to the
United States Constitution and Art. 1, Par.1 of the New Je[rs]ey Constitution were violated
by the admission of acc[u]sations from absentee witnesses about prior crimes allegedly
committed by the defendant when the state introduced evidence showing that a narcotics
officer that was working with the prosecutor’s office and was later transfer[r]ed to the DEA
had the defendant under surveillance.
6. The defendant’s right to due process of law as guaranteed by the Fourteenth Amendment
to the United States Constitution and Art.1, Par.1 of the New Jersey Constitution was
violated by Prosecutorial Misconduct when the prosecutor made it clear to the jury,
however, that the defendant was engaged in a continuing enterprise. The prosecutor argued
that you can basically see a business model for this defendant.
7. The defendant’s right to due process of law as guaranteed by the Fourteenth Amendment
of the United States Constitution and Art.1, Par.1 of the New Jersey Constitution was
violated by the improper admission of the state’s expert witness testimony concerning
matters well within the ken of the average juror when the expert witness rendered an expert
conclusion that the CDS in this case was possessed with the intent to distribute. The expert
improperly rendered an expert opinion concerning the guilt of the defendant on the charge
of possession with the intent to distribute.
8. The defendant’s right to due process of law as guaranteed by the Fourteenth Amendment
to the United States Constitution and Art.1, Par.1 of the New Jersey Cons[t]itution was
violated when the trial court expressly disavowed its obligation to ensure a fair trial,
resulting in unfair prejudice when the juror[]s heard allegations by a state[’]s witness that
the defendant was dealing drugs night and day, and that purported fact was false.
6
9. The defendant’s right to due process of law as guaranteed by the Fourteenth Amendment
of the United States Constitution and Art.1, Par.1 of the New Jersey Constitu[t]ion was
violated when the state[’] s lay witness rendered highly prejudicial opinions that should
have been exc[lu]ded when the officer testified before the jury that he premised on his own
personal belief that drugs that w[ere] not tested by the lab chemist was in fact her[oi]n.
10. The State failed to prove beyond a reasonable doubt that the defendant’s waiver of his
Miranda Rights had been made knowingly and voluntarily. The police deprived the
defendant the opportunity to consult with an attorney before giving an incriminating
confession. The officer did concede that the defendant asked him to make a phone call,
but the officer told the defendant that he could make his call at the end of the interview.
11. The defendant’s right to Confrontation as guaranteed by the Sixth Amendment of the
United States Constitution and the New Jersey Constitution of 1947, and the defendant’s
right to due process that is guaranteed by the Fourteenth Amendment of the United States
Constitution was violated when the trial court denied the defendant’s motion to obtain the
police records of the state[’]s witnesses when the defendant produced evidence that one of
the officer’s in his case ha[d] forged a judge[’]s signature on a search warrant in another
case and that there were other officer[]s in the defend[an]t’s case that w[ere] under
investigation.
(ECF No. 1.)
Respondents submitted an Answer in which they argue that Petitioner’s claims are
meritless. (ECF No. 7.) Petitioner submitted a reply, relying on his briefs submitted to the state
courts. (ECF No. 9.)
III.
LEGAL STANDARD
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, 567 U.S. 37, 40–41 (2012). District
courts are required to give great deference to the determinations of the state trial and appellate
courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).
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Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable 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 the
State court proceeding.
28 U.S.C. § 2254(d)(1)–(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). “When reviewing state
criminal convictions on collateral review, federal judges are required to afford state courts due
respect by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Id. Where a petitioner challenges an allegedly erroneous factual determination of
the state courts, “a determination of a factual issue made by a State court shall be presumed to be
correct [and the] applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Under these 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). Additionally, these standards apply “even where there has been a summary
denial” by the state court. Cullen v. Pinholster, 563 U.S. 170, 187 (2011). “In these circumstances,
[petitioner] can satisfy the ‘unreasonable application’ prong of § 2254(d)(1) only by showing that
‘there was no reasonable basis’ for the [state court’s] decision.” Id. at 187–88 (quoting Harrington
v. Richter, 562 U.S. 86, 98 (2011)). Furthermore, “when the relevant state-court decision on the
merits . . .does not come accompanied with . . . reasons . . . [w]e hold that the federal court should
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‘look through’ the unexplained decision to the last related state-court decision that does provide a
relevant rationale.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
IV.
DISCUSSION
A. Ground One: Search and Seizure
In Ground One, Petitioner contends that he was unlawfully searched and that the search
incident to his arrest was unlawful. (ECF No. 1 at 5.)
The Fourth Amendment bars “unreasonable searches and seizures.” U.S. Const. amend.
IV. Generally, evidence gained through a Fourth Amendment violation may not be used against a
defendant at trial. See Mapp v. Ohio, 367 U.S. 643, 654–55 (1961); Weeks v. United States, 232
U.S. 383, 391–93 (1914). This “exclusionary rule” is a judicially-created remedy to safeguard
Fourth Amendment rights by deterring police conduct that violates those rights. Stone v. Powell,
428 U.S. 465, 486 (1976). With respect to collateral review, however, the Supreme Court has
found that the costs of the exclusionary rule outweigh its benefits. Therefore,
‘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.’ [Stone, 428 U.S. at 494.] While the federal courts are not
thus deprived of jurisdiction to hear the claim, they are—for
prudential reasons—restricted in their application of the
exclusionary rule.
Marshall v. Hendricks, 307 F.3d 36, 81 (3d Cir. 2002), cert. denied, 538 U.S. 911 (2003).
Here, Petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment
claim in the form of a motion to suppress the evidence seized by the arresting officers (ECF No.
7-13), as well as raising it on direct appeal. Accordingly, this Court will not grant federal habeas
relief on this claim.
9
B. Ground Two: Grandy Jury Indictment
In Ground Two, Petitioner argues that the state court erred in denying his motion to dismiss
the indictment. (ECF No. 1 at 8.) In support of his argument, Petitioner alleges that the grand jury
testimony consisted of hearsay evidence and that the indictment number was incorrect. (Id.)
The Appellate Division rejected this claim as follows:
Potter argues that the indictment should have been dismissed
because it was based on hearsay evidence [and] the indictment
number was incorrectly transcribed . . . [t]he motion judge correctly
rejected those contentions.
A grand jury indictment is presumed valid and should only be
disturbed if manifestly deficient or palpably defective, Ramseur,
supra, 106 N.J. at 232, based on the ‘clearest and plainest ground,’
State v. Perry, 124 N.J. 128, 168 (1991) (quoting State v. N.J. Trade
Waste Ass’n, 96 N.J. 8, 18–19 (1984)). [A]n indictment should not
be dismissed unless the prosecutor’s error was clearly capable of
producing an unjust result. This standard can be satisfied by
showing that the grand jury would have reached a different result
but for the prosecutor’s error. State v. Hogan, 336 N.J. Super. 319,
344 (App. Div.), certif. denied, 167 N.J. 635 (2001). A discrepancy
in a date stamp or other similar clerical error will not invalidate an
indictment. State v. Unsworth, 85 N.J.L. 237, 238 (E.A. 1913). As
we explained in State v. Holsten, ‘[a]n indictment may be based
largely or wholly on hearsay and other evidence which may not be
legally competent or admissible at the plenary trial.’ 223 N.J. Super.
578, 585 (App. Div. 1988) (alteration in original) (quoting State v.
Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev’d on other
grounds, 110 N.J. 258 (1988)); see also State v. McCrary, 97 N.J.
132, 146 (1984) (stating that hearsay and other informal proofs are
permissible in determining issues that implicate important rights,
such as the bases for an indictment (citing Costello v. United States,
350 U.S. 359, 363, 76 S. Ct. 406, 408, 100 L. Ed. 397, 402–03, reh’g
denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956)); State
v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) (A grand jury
may return an indictment based largely or wholly on hearsay
testimony.). Where there is sufficient evidence to sustain the grand
jury’s charges, the indictment should not be dismissed. See Holsten,
supra, 223 N.J. Super. at 585–86.
Potter, 2015 WL 3843309, at *15.
10
Deficiencies in state grand jury proceedings are generally not grounds for relief in § 2254
habeas proceedings. See, e.g., Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (relying on United
States v. Mechanik, 475 U.S. 66 (1986)). To determine whether “an otherwise fair trial remedies
errors not occurring at the trial itself . . . . [courts must inquire] whether the trial cured the particular
error at issue.” See Lafler v. Cooper, 566 U.S. 156, 165 (2012). Here, the Court finds that the trial
testimony cured any alleged hearsay testimony at the grand jury proceeding.
The record
establishes that Officer Raisin testified during the grand jury proceeding about matters he observed
and matters Officer Warraich and Detective Snowden described to him. (ECF No. 7-11). At trial,
Raisin, Warraich and Snowden had the opportunity to testify and were cross-examined. (ECF
Nos. 7-20, 7-21.) Thus, any potential errors related to hearsay testimony during the grand jury
proceeding were cured at the subsequent trial, which resulted in a guilty verdict. See United States
v. Console, 13 F.3d 641, 672 (3d Cir. 1993) (with the exception of a claim of racial discrimination
in the selection of grand jurors, a “petit jury’s guilty verdict render[s] any prosecutorial misconduct
before the indicting grand jury harmless.”) (citing Vasquez v. Hillery, 474 U.S. 254 (1986)); see
also Brewer v. D’Ilio, 14-6886, 2018 WL 878529, at *5 (D.N.J. Feb. 14, 2018) (finding that
“indictments may be returned on hearsay”) (citing Pittsburgh Plate Glass Co. v. United States,
360 U.S. 395, 400 (1959)).
Petitioner also argues that the indictment number was improperly transcribed. With respect
to the indictment itself, the document contains no indictment number, but only a case number.
(ECF No. 7-3 at 77.) It does, however, contain Petitioner’s full name, the date of the charges
against him, and the elements of each offense. (Id.) Thus, Petitioner was, or should have been,
aware of the specific charges pending against him based on that document. “In determining
whether the notice in an indictment is sufficient to afford a defendant due process, the question is
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whether under the circumstances there was reasonable notice and information of the specific
charge against him and a fair hearing in open court.” Bibby v. Tard, 741 F.2d 26, 29 (1984) (citing
Paterno v. Lyons, 334 U.S. 314, 320 (1948)). The indictment certainly put Petitioner on notice of
the specific charges against him.
During the hearing on Petitioner’s motion to dismiss the indictment, he also explained that
various items provided to him in discovery contained the wrong indictment number and the plea
offer contained a different defendant’s name. (ECF No. 7-17 at 2–3.) To the extent that is true,
Petitioner points to no Supreme Court case law, nor is this Court aware of any, that typographical
errors in the discovery provided to a defendant could support a constitutional violation sufficient
for habeas purposes. Because Petitioner has not shown that the Appellate Division decision on
this matter was an unreasonable application of Supreme Court precedent, this claim is denied.
C. Ground Three: Jury Instructions
In Ground Three, Petitioner contends that the trial judge improperly instructed the jury that
a judicial determination had previously been made as to the legality of the stop of Petitioner. (ECF
No. 1 at 9.) The Appellate Division summarily rejected this claim. See Potter, 2015 WL 3843309,
at *12.
The record establishes that after Petitioner’s cross-examination of Officer Warraich—
which included questions related to the legality of the search and seizure of evidence—the judge
explained at sidebar that the issue of search and seizure had already been decided upon at the
suppression hearing. The judge stated:
At some point in time, and it may be at the end of the case, this jury
is going to get a charge from me that the search and seizure in this
case is not for them to determine. Their sole and exclusive purpose
is to determine if this defendant was in possession, possession with
intent or possession with intent within a thousand feet of a school of
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a controlled substance, to wit, heroin.
defendant] to understand that.
I just want him [the
(ECF No. 7-20 at 42.)
At the end of the day’s proceedings, the judge instructed the jury as follows:
Now, let me explain something to you. Prior to today’s proceedings
or this trial in this case, there was a determination made, a judicial
determination about the search, and the search was determined in
this case in a prior proceeding to be legal. So your task in this case,
I just want you to understand when you’re listening to the testimony,
the jury’s task in this case is to determine whether this defendant is
guilty or not guilty of possession of heroin, possession of that heroin
with intent to distribute, and possession of that heroin with intent to
distribute within a thousand feet of a school or school property.
The jury is not -- part of your function is not to determine whether
or not the search was legal or illegal. That’s already been
determined. Do you understand what your function is? I’ve refined
the issues in this case.
(Id. at 64.)
At the conclusion of trial, the judge instructed the jury similarly:
The issue of the validity of the stop and search of the defendant is
not for the jury to decide. Only the issue of guilt or nonguilt of the
three counts that I have just outlined in the indictment. That is the
jury’s task in this case.
(ECF No. 7-23 at 26.)
“It is well-settled that ‘the question of the competency of the evidence . . . by reason of the
legality or otherwise of its seizure [is] a question of fact and law for the court and not for the jury.’”
United States v. Reed, 575 F.3d 900, 919 (9th Cir. 2009) (citing Steele v. United States, 267 U.S.
505, 511 (1925)); see also United States v. Gaudin, 515 U.S. 506, 525–26 (1995) (“Preliminary
questions in a trial regarding the admissibility of evidence . . . the legality of searches and seizures
. . . may be decided by the trial court.”)
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Here, the legality of the search and seizure was not a question for the jury to consider.
Rather, it was a question for the trial court to rule on in the context of the pretrial motion to
suppress. Because the judge appropriately instructed the jury as such, the Appellate Division
decision denying this claim was not an unreasonable application of Supreme Court precedent.
Accordingly, the Court denies relief on this claim.
D. Ground Four: Improper Jury Instruction
In Ground Four, Petitioner alleges that the trial court improperly instructed the jury on the
“quantity requirement for a second degree intent to distribute CDS crime.” (ECF No. 1 at 11.)
Petitioner provides no support for this argument. In his brief in state court, Petitioner stated that
the difference between second-degree and third-degree intent to distribute depends upon the
amount intended to be distributed. (ECF No. 7-3 at 21.) He argued that the jury instructions were
deficient because they did not require the jury to consider how much of the heroin in Petitioner’s
possession he intended to keep for himself. (Id. at 21–21.)
The Appellate Division denied this claim as follows:
Potter argues for the first time on appeal that the trial judge erred in
failing to charge the jury that it should consider how much of the
heroin he intended to keep for his personal use in determining
whether he possessed “a quantity of one-half ounce or more with the
intent to distribute,” as required by N.J.S.A. 2C:35–5(b)(2). Not
only did Potter fail to request such a charge, there was no evidence
in the record to suggest that he intended to keep any for himself. In
fact, in his statement, Potter said that he had two bags of heroin and
intended to sell both of them. Consequently, there was no error and,
even if there was, the error did not possess “‘a clear capacity to bring
about an unjust result[.]’” Adams, supra, 194 N.J. at 207 (quoting
Jordan, supra, 147 N.J. at 422).
Potter, 2015 WL 3843309, at *13.
Petitioner’s claim in this context appears to rest on matters of state law. The Supreme
Court has explained that “[i]t is not the province of a federal habeas court to reexamine state-court
14
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). “[T]he
fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief.”
Id. at 71–72.
Nevertheless, to the extent the claim could be construed as resting on federal law as well,
the habeas court must consider “whether the ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process [under the Fourteenth Amendment] . . . not
merely whether the instruction is undesirable, erroneous, or even universally condemned.”
Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (internal citations and quotations omitted). A
habeas petitioner must establish that the instructional error “had [a] substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Further, it is “well established” that instructions “may not be judged in artificial isolation,” but
must be viewed in the context of the overall charge and the trial record. Cupp v. Naughton, 414
U.S. 141, 146 (1973).
The state court determination on this matter was not objectively unreasonable. The judge
instructed the jury on the quantity requirement of possession with intent to distribute, as follows:
Now, as I indicated to you, there’s a supplemental question under
Count 2 concerning the weight. If you have found the defendant
guilty of possession with intent to distribute, and that’s the predicate
question you will see on the verdict sheet, you must then determine
the quantity of the heroin involved. It is the State’s burden to prove
beyond a reasonable doubt the quantity of heroin involved. The
State need not prove the defendant’s knowledge of the quantity of
the drugs so long as it proves beyond a reasonable doubt that the
defendant knowingly possessed the controlled, dangerous
substance. You may aggregate the controlled, dangerous substance
when you find that separate amounts of the controlled, dangerous
substance were obtained and/or possessed by the defendant. If you
determine that the CDS, that is controlled, dangerous substance, was
obtained or possessed by the defendant, the weight amounts may be
added together to form a single total.
15
...
Specifically you must determine which one of the following
quantities has been proven. This is the supplemental question. One
half ounce or more, including any adulterants or dilutants; or less
than one half ounce of heroin, including adulterants or dilutants.
After determining which of these quantities the State has proven
beyond a reasonable doubt, you should mark the appropriate section
of the verdict sheet, which would be supplied to you.
(ECF No. 7-23 at 29–30.)
The judge also instructed the jury on the offense of possession of heroin with intent to
distribute by reciting the New Jersey statute and reiterating and defining the elements involved.
(ECF No. 7-23 at 27–29.) Specifically, the judge defined the term distribute: “distribute means to
transfer, actual, constructive, or attempted from one person to another…” (Id. at 28.) The jury
was therefore aware that it was the State’s burden to prove that the quantity of heroin involved—
more or less than one half ounce—was physically transferred to the person of another. Thus, there
is no ambiguity in the instruction in the manner described by Petitioner.
Furthermore, as indicated by the Appellate Division and established by the record, there
was no evidence to suggest that Petitioner intended to keep any of the heroin for himself. In his
redacted statement to the police, which was played for the jury, Petitioner explained that he was
told to pick up the seventeen bricks of heroin and deliver it to two individuals. (ECF No. 7-5 at
102.) Petitioner explained that he was paid for his delivery and he used the money for food and to
earn extra cash. (Id. at 103.) Because Petitioner fails to argue that the jury verdict was based on
an erroneous jury instruction or an erroneous factual determination, the Court denies relief on this
claim.
16
E. Ground Five: Confrontation Clause
Petitioner argues that his constitutional rights were violated when the State presented
evidence that he was under surveillance. (ECF No. 1 at 13.) He explains that this violated his
rights under the Confrontation Clause, and improperly highlighted prior crimes he allegedly
committed. (Id.)
The Appellate Division rejected this claim as follows:
Potter also argues for the first time on appeal that the State
improperly introduced, through testimony that Potter was under
surveillance at the time of his arrest, evidence of other crimes in
violation of N.J.R.E. 404(b) and State v. Cofield, 127 N.J . 328, 338
(1992). Samis testified on direct that there was a surveillance set up
on Potter. There was no objection. On cross-examination, when
Potter asked Samis why he was under surveillance, Samis responded
that they had received information from a confidential informant.
Potter did not object to that testimony either, and in fact it was his
cross-examination of Samis that invited the mention of the
informant. In addition, he never requested a limiting instruction.
Although we question whether mention of the surveillance, or the
informant, in response to Potter’s own question, actually raises an
issue under Cofield, we are convinced that the testimony at issue
does not raise “‘a reasonable doubt as to whether the error led the
jury to a result it otherwise might not have reached,’” Taffaro, supra,
195 N.J. at 454 (quoting Macon, supra, 57 N.J. at 336).
Potter, 2015 WL 3843309, at *13.
In their Answer, Respondents argue that Petitioner invited the error upon himself. (ECF
No. 7 at 29.) The Court agrees.
The record establishes that throughout the trial Petitioner questioned various officers about
the confidential informant (“CI”) who provided them with information on Petitioner’s sale of
drugs. Petitioner’s standby counsel objected, stating that this information was hearsay. (ECF No.
7-20 at 30.) The trial judge responded that he would not protect Petitioner from himself, because
it was Petitioner who raised the subject of the CI. (Id.) Petitioner then continued to question the
17
officers about the information they received from the CI. For example, on cross-examination of
Officer Warraich, Petitioner questioned:
Q:
Now, you stated that there was information, that you
received information from Officer Raisin that I would be
transporting a large amount of heroin?
A:
Yes.
Q:
And where did that information come from?
A:
That you have to ask Officer Raisin.
Q:
He didn’t tell you where he got the information from?
A:
We may have discussed, yeah, but it’s confidential
informant.
Q:
A confidential informant?
A:
Yes.
(ECF No. 7-20 at 31.)
Similarly, on cross-examination of Detective Samis, Petitioner questioned:
Q:
In this report you state that on April 26, 2010, during the
evening hours that you met with a confidential informant who had
been proven reliable in the past in reference to narcotics. The CI
advised you that during the morning hours a man known to the CI
as Eric Potter would walk from the area of the Vita Gardens area
through the Asbury Park Middle School basketball court, north on
Comstock Street to 1042 Bangs Avenue, where he would distribute
a quantity of heroin during the day.
The CI stated that Potter would play poker on the second
floor with other subjects and distribute the CDS while at that
location. The CI described Potter as a black male, early 50’s,
approximately 5 [feet], 6 inches tall, thin build, brown skin.
...
Q:
Is that correct? Is that report correct?
A:
Yes.
18
Q:
That’s the information that the CI provided you?
A:
Yes.
Q:
And you’re sure?
A:
Yes.
(ECF No. 7-20 at 56.)
When the State later questioned Detective Samis about events prior to Petitioner’s arrest,
Detective Samis testified that the officers “set up surveillance on Mr. Potter . . .” (ECF No. 7-21
at 10.) In his brief before the Appellate Division, Petitioner took issue with Detective Samis’
statement, arguing that his rights under the Confrontation Clause were violated because he could
not question the confidential informant. (ECF No. 7-3 at 32–36.) He also argued that the statement
indicated to the jury that he had committed prior bad acts, which was the reason he was under
surveillance. (Id.)
The doctrine of invited error prevents a habeas petitioner from raising a claim challenging
an action of the trial court which was invited or induced by that petitioner. See, e.g., United States
v. Maury, 695 F.3d 227, 256 (3d Cir. 2012). This doctrine provides an independent basis for this
Court to reject claims raised in § 2254 habeas matters. See, e.g., York v. O’Llio, No. 13-7609,
2016 WL 5938700, at *10–11 (D.N.J. Oct. 11, 2016).
Here, the exchanges that occurred in the trial court proceedings cited above unquestionably
demonstrate that it was Petitioner who invited the error upon himself. He repeatedly questioned
the officers about the confidential informant; when Petitioner’s standby counsel raised concerns,
Petitioner continued his line of questioning. “Indeed, because Petitioner . . . consented to and
approved of the course of action taken . . . he cannot [now] cry foul as to the action in question.”
19
Saunders v. D’Illio, No. 15-2683, 2018 WL 1251629, at *9 (D.N.J. Mar. 12, 2018) (internal
quotation marks and citation omitted). Therefore, this claim must be denied.
With respect to the prior bad acts, this Court is not aware of any Supreme Court case clearly
establishing that bad acts evidence constitutes a violation of federal constitutional rights. See, e.g.,
Minett v. Hendricks, 135 F. App’x 547, 553 (3d Cir. 2005) (rejecting claim that admission of “other
crimes” evidence is contrary to or an unreasonable application of clearly established Supreme
Court precedent); see also Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir. 2007) (state
court’s admission of evidence of petitioner’s prior bad acts did not render trial fundamentally
unfair or warrant habeas relief). Moreover, no bad acts were ever referenced by Detective Samis.
Instead, Detective Samis only stated that Petitioner was under surveillance and the Court does not
find convincing Petitioner’s suggestion that surveillance of a suspect equates to that suspect having
committed bad acts. Because Petitioner fails to demonstrate he is entitled to relief, this claim is
denied.
F. Ground Six: Prosecutorial Misconduct
Petitioner next argues that prosecutorial misconduct occurred when the prosecutor stated
that Petitioner was engaged in a continuing criminal enterprise. (ECF No. 1 at 13.) In state court,
Petitioner pointed to the State’s summation to support this claim, wherein the prosecutor stated,
“you can basically see a business model for this defendant.” (ECF No. 7-23 at 12.)
The Appellate Division rejected this claim as follows:
Potter contends for the first time on appeal that the prosecutor
improperly stated in closing argument that Potter was engaged in an
ongoing criminal enterprise. The prosecutor argued to the jury that
“you can basically see a business model for this defendant.” In the
absence of an objection, [such] remarks usually will not be deemed
prejudicial. State v. Ramseur, 106 N.J. 123, 322–23 (1987). The
failure to object suggests that the defendant did not believe the
remarks were prejudicial at the time they were made and deprives
20
the court of an opportunity to take curative action. State v. Bauman,
298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25
(1997). In any event, the prosecutor’s argument was a fair comment
on that portion of Potter’s statement to the police in which he said
that he obtained drugs from a supplier and sold the drugs for profit.
He also told them that he used the money derived from the
transactions to support himself.
Potter, 2015 WL 3843309, at *14.
The Supreme Court has explained that a prosecutor’s arguments on summation will only
result in a constitutional violation if “the argument rendered the trial unfair.”
Darden v.
Wainwright, 477 U.S. 168, 179 (1986). “[I]t is not enough that the prosecutors’ remarks were
undesirable or even universally condemned. . .[t]he relevant question is whether the prosecutors’
comments so infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Id. at 181 (internal citations and quotation omitted).
The Appellate Division decision on this matter was neither contrary to nor an unreasonable
application of Supreme Court law. Given Petitioner’s recorded statement to the police—in which
he stated that he sold the drugs for a profit and used the money to buy food and earn extra cash—
Petitioner’s argument that the prosecutor’s statement rendered the trial unfair has no merit.
Instead, by his own admission, Petitioner did appear to be engaged in a criminal enterprise.
Furthermore, even had Petitioner objected to the statement and the judge deemed the statement
improper, there was still ample evidence of Petitioner’s guilt. Petitioner gave a detailed confession
to the police and various officers observed Petitioner with the heroin in his pockets. More
importantly, the jury instructions at the conclusion of trial instructed the jury not to consider the
State and defense counsel’s summation as evidence. (ECF No. 7-23 at 21.) The jury is presumed
to have followed this instruction. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). Accordingly,
Petitioner fails to show he is entitled to relief on this claim.
21
G. Ground Seven: Expert Witness Testimony
Petitioner next argues that an expert witness, Detective Snowden, improperly rendered a
conclusion that usurped the jurors’ responsibility to determine the facts. (ECF No. 1 at 14); (ECF
No. 3 at 45).
The Appellate Division denied this claim, explaining:
Potter also asserts for the first time on appeal that expert testimony
in this case was improper because the expert opined that the heroin
was possessed with the intent to distribute. Such testimony is
specifically permitted by the Supreme Court, which held in State v.
Sowell, 213 N.J. 89, 103–05 (2013) that ordinary jurors cannot be
expected “to understand the difference between drugs possessed for
distribution as opposed to personal use.” In any event, Potter
admitted in his statement to the police that he had the heroin with
him because he intended to sell it.
Potter, 2015 WL 3843309, at *14.
To the extent Petitioner is arguing that the state court erred as a matter of state law in
permitting Detective Snowden to provide this testimony, this argument is not proper for federal
habeas review. See Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (“the Due Process Clause
does not permit the federal courts to engage in a finely-tuned review of the wisdom of state
evidentiary rules”); Wilson v. Vaughn, 533 F.3d 208, 213 (3d Cir. 2008) (“[a]dmissibility of
evidence is a state law issue”) (citing Estelle, 502 U.S. at 72).
Nevertheless, to the extent this can be raised as a due process violation, a state court’s
evidentiary decision must have been 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) (evidentiary error rises to the level of a Due Process
violation only when “it was of such magnitude as to undermine the fundamental fairness of the
entire trial”). Courts have held that the appropriateness of expert witness testimony is analyzed
22
under this same standard. See Beltran v. Hastings, No. 12-2042, 2014 WL 1665727, at *12–17
(D.N.J. Apr. 24, 2014) (analyzing the appropriateness of expert testimony on habeas review under
the standard for evidentiary error); see also Dandor v. Ricci, No. 09-1565, 2011 WL 735065, at
*16 (D.N.J. Feb. 22, 2011) (finding on habeas review that expert testimony was not improper
because the testimony did not violate fundamental fairness). 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) (internal quotations omitted).
The record establishes that Detective Snowden testified for the State as an expert in
narcotics distribution. (ECF No. 7-21 at 45.) He described how heroin is generally packaged and
the cost of purchasing various quantities. (Id. at 45–48.) He then testified that he reviewed the
police reports and lab reports in Petitioner’s case. (Id. at 48.) The State then asked, “[n]ow, in
your opinion, the possession of 850 bags of heroin in conjunction with the possession of $1500 in
cash, is that indicative of possession of heroin with the intent to use it yourself or with the intent
to distribute the heroin?” (Id. at 48.) Detective Snowden responded, “[t]hat would be with the
intent to distribute.” (Id.) On cross-examination, Petitioner asked Detective Snowden: “And you
can’t say for sure whether or not the drugs was for distribution or use or not, or anything like that,
that’s just your opinion then?” (Id.) Snowden responded: “Well, it’s my opinion. I have never
seen an addict have 17 bricks of heroin on him.” (Id.)
The Appellate Division decision rejecting this claim was not unreasonable. There is
nothing to indicate that Detective Snowden’s testimony rendered the trial fundamentally unfair.
Snowden was accepted as an expert witness and he rendered an opinion based on the facts
presented to him. He made clear that it was only his opinion; the jury was never instructed that
they must accept his opinion as fact. Moreover, at the conclusion of trial, the judge instructed the
23
jury that they were “not bound” by the expert’s opinion but may “consider” it or “reject it.” (ECF
No. 7-23 at 23–24.) Because the alleged violation does not violate clearly established federal law,
Petitioner is denied relief on this claim.
H. Ground Eight: Prejudicial Testimony
In his next ground for relief, Petitioner argues that the trial court allowed a witness to
provide false testimony—that Petitioner was dealing drugs day and night. (ECF No. 1 at 14.) The
Appellate Division rejected this claim as meritless without further discussion. Potter, 2015 WL
3843309, at *12.
The record reveals that portions of the taped statement made by Petitioner to Detective
Samis were redacted, and only the redacted version was played for the jury. (See ECF No. 7-21
at 11.) At trial, Detective Samis testified for the State.
On cross-examination, Petitioner
questioned Detective Samis about a portion of the statement that had previously been redacted.
(ECF No. 7-21 at 19.) Petitioner questioned Detective Samis as follows:
Q:
Okay. Now, in this video statement, I mean, the statement,
you stated, “I mean, we been out in the morning pretty much. That
area has been a lot of complaints and a lot of activity. You been
there a lot lately, and that’s why you came up on the radio. I mean,
this is something that you just been doing all day and night or have
been slowing it down, or just selling as much as you can trying to
get on your feet.”
Now, what do you mean by “you been out there a lot in the
morning lately”?
(ECF No. 7-21 at 19.)
At that point, the State objected, and argued at sidebar that this portion of the recorded
statement had been stricken. (Id.) Petitioner’s standby counsel responded that it had not been
stricken at Petitioner’s request. (Id.) The Court responded that he would permit Petitioner to
question Detective Samis on the matter, stating: “[y]ou know what? I took things out at his request.
24
If he puts them back in, then on rebuttal they got a right to rehabilitate that statement. He can do
whatever he wants, but I’m not protecting him from himself.” (Id.)
Petitioner then proceeded with his questioning of Detective Samis:
Q:
Now, you said that area that you had a lot of complaints and
a lot of activity, and that I been out there a lot lately. What did you
mean by that?
A:
By that statement, Mr. Potter?
Q:
By that statement you said?
A:
When you’re dealing with confidential informants with
investigations like this, with narcotics, of course it brings a lot of
danger to situations. We didn’t want Mr. Potter to be aware that
there was a confidential informant that was used in this case. So I
was letting Mr. Potter know that we had been out there and seen him
so he didn’t think that a person could have told on him or possibly
that individual, the confidential informant could get hurt. So that
was a ruse, Mr. Potter, just to make you feel comfortable that
possibly we were watching you instead of a confidential informant
was used.
Q:
So basically it was a lie?
A:
It was a ruse.
(Id. at 20.)
As noted previously by this Court, state court evidentiary rulings are generally not proper
for federal habeas review. See Lonberger, 459 U.S. at 438 n.6. Instead, a state evidentiary decision
will rise to the level of a due process violation only where it rendered the trial fundamentally unfair.
See Romano, 512 U.S. at 12–13. Here, there is nothing to indicate that the judge’s decision
allowing Petitioner to proceed with his questioning of Detective Samis rendered the trial
fundamentally unfair. The record makes clear that it was Petitioner himself who chose to put this
information before the jury, not the judge or the State. This portion of the recorded statement had
25
been redacted. There was a discussion at sidebar about that fact, but Petitioner still chose to
continue questioning Detective Samis on the topic.
Furthermore, to the extent the testimony was improper, the excerpts above make clear that
it was Petitioner who invited the error upon himself. Thus, he cannot challenge this testimony
now on habeas review. See Maury, 695 F.3d at 256. Lastly, in his state court brief, Petitioner
argued that he was prejudiced by “Samis’ allegation that the defendant had been selling drugs day
and night.” (ECF No. 7-3 at 54.) This, however, is not accurate. Detective Samis specifically
stated on the record that it was a ruse and was not true. For these reasons, this claim for relief is
denied.
I. Ground Nine: Lay Witness Testimony
In Ground Nine, Petitioner argues that he was prejudiced by Officer Warraich’s testimony,
when the Officer stated that he believed what was inside Petitioner’s pocket was heroin. (ECF
No. 1 at 14.) In his state court brief, Petitioner elaborated that Warraich “improperly provided
substantive evidence that it was all heroin,” when, in fact, only a portion of the evidence seized
was tested by a chemist. (ECF No. 7-3 at 57.)
The Appellate Division rejected this claim, stating:
We also find no reason to reverse on the basis of Warraich’s
testimony to his belief that the plastic bag in Potter’s pocket
contained heroin, testimony to which there was no objection.
Although Warraich had not been qualified as an expert, his
testimony was not offered to prove that the bags contained heroin,
but rather offered to show why he arrested Potter. The State called
a qualified expert to testify to her analysis of a portion of the
contents of the bags seized from Potter, which established that there
was more than one half of an ounce of heroin. The testimony at
issue does not raise “‘a reasonable doubt as to whether [any] error
led the jury to a result it otherwise might not have reached,’”
Taffaro, supra, 195 N.J. at 454 (quoting Macon, supra, 57 N.J. at
336).
26
Potter, 2015 WL 3843309, at *14.
The transcripts of the trial proceeding revealed that Officer Warraich testified that when he
approached Petitioner he “observed CDS, heroin” in Petitioner’s front jacket pocket. (ECF No. 720 at 26.) He further explained that he observed “[a] clear plastic bag containing [what] I believed
to be bricks of heroin.” (Id. at 27.) On cross-examination the Officer testified that the heroin was
“wrapped up in paper.” (Id. at 32.) Petitioner then asked:
Q:
So how do you know what was inside the paper?
A:
I don’t. But that’s how heroin is -- from my training and
experience, I’ve never seen anything else wrapped up in it. . . . And
with the information that we already had, it was quite obvious to me
that that’s what it was.
(Id.)
Once again, to the extent Petitioner is arguing that the trial court erred under state law in
permitting Officer Warraich to provide this testimony, this claim is not proper for federal habeas
review. See Lonberger, supra, 459 U.S. at 438 n.6. In fact, in his brief in state court, Petitioner
cited only to New Jersey law to support his argument that this was beyond the realm of lay witness
testimony. (ECF No. 7-3 at 56–60.) As such, this claim is not proper for federal habeas review.
Nevertheless, even if this claim can be construed as containing a federal element, Petitioner
has not shown how this testimony rendered the trial fundamentally unfair. See Romano, 512 U.S.
at 12–13. The State provided testimony from Lorraine Kazenmayer, an expert in the analysis of
controlled and dangerous substances. She verified that she tested a sampling of the evidence which
was found to be heroin. (ECF No. 7-21 at 34–35.) Kazenmayer testified that the heroin weighed
more than one-half ounce in total. (Id. at 34–35.) Kazenmayer also stated that while she did not
test all the powder in the 500 glassine envelopes, she used the lab’s statistical method to determine
how much to test to cover the full amount of evidence. (Id. at 33, 37.) Thus, the fact that the
27
glassine envelopes contained heroin, was verified by an expert witness and was not solely based
on the opinion testimony of Warraich. Because Petitioner has not shown that the Appellate
Division’s rejection of this claim was unreasonable, this claim is denied.
J. Ground Ten: Miranda Rights
In Ground Ten, Petitioner contends that the State failed to prove beyond a reasonable doubt
that he waived his Miranda rights. (ECF No. 1 at 15.) In support of his claim, he states that he
was deprived of an opportunity to consult with an attorney or make a phone call during the
interview. (Id.)
The Appellate Division denied this claim as follows:
We now turn to the Miranda issue. A trial judge will admit a
confession into evidence only if the State has proven beyond a
reasonable doubt, based on the totality of the circumstances, that the
suspect’s waiver of those rights was knowing, intelligent, and
voluntary. State v. Patton, 362 N.J. Super. 16, 42 (App. Div.), certif.
denied, 178 N.J. 35 (2003). In reviewing a trial judge’s ruling on a
Miranda motion, we analyze police-obtained statements using a
“searching and critical” standard of review to ensure that
constitutional rights have not been trampled upon. Patton, supra,
362 N.J. Super. at 43 (citations and internal quotation marks
omitted). We generally will not “engage in an independent
assessment of the evidence as if [we] were the court of first
instance,” State v. Locurto, 157 N.J. 463, 471 (1999), nor will we
make conclusions regarding witness credibility, State v. Barone, 147
N.J. 599, 615 (1997). Instead, we generally defer to the trial judge’s
credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383
(App. Div. 2000).
A suspect’s confession during a custodial interrogation can only be
obtained if that suspect was supplied with his or her Miranda rights.
Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1620–21, 16 L.Ed.2d
at 716. Before considering the validity of a waiver of Miranda
rights, it must be established that the police scrupulously honored
the suspect’s right to remain silent. State v. Burno–Taylor, 400 N.J.
Super. 581, 589 (App. Div. 2008). If the suspect’s words or conduct,
upon being advised of his or her rights, “could not reasonably be
viewed as invoking the right to remain silent,” this requirement is
28
satisfied and the police may continue their questioning. Id. at 590
(citing State v. Bey, 112 N.J. 123, 136–38 (1988)).
The trial judge determined, by the required standard, that the State
had demonstrated that Potter had freely and voluntarily waived his
Miranda rights after they had been appropriately explained to him.
...
On appeal, Potter argues for the first time that he was denied the
opportunity to seek the advice of counsel over the telephone. There
is no evidence in the record to support that claim. The fact that
Samis told Potter at the end of the interview that he could make
telephone calls once they found out what his bail was does not
support Potter’s claim.
Potter, 2015 WL 3843309, at *10–11.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to
be a witness against himself.” U.S. Const. amend. V. The Fourteenth Amendment incorporates
the Fifth Amendment privilege against self-incrimination. See Malloy v. Hogan, 378 U.S. 1, 8
(1964). In Miranda v. Arizona, the United States Supreme Court held that “without proper
safeguards the process of in-custody interrogation . . . contains inherently compelling pressures
which work to undermine the individual’s will to resist and to compel him to speak where he would
not otherwise do so freely.” 384 U.S. 436, 467 (1966). Pursuant to Miranda and its progeny,
“suspects interrogated while in police custody must be told that they have a right to remain silent,
that anything they say may be used against them in court, and that they are entitled to the presence
of an attorney, either retained or appointed, at the interrogation.” See Thompson v. Keohane, 516
U.S. 99, 107 (1995) (citing Miranda, 384 U.S. at 444).
“When police ask questions of a suspect in custody without administering the required
warnings, Miranda dictates that the answers received be presumed compelled and that they be
excluded from evidence at trial in the State’s case in chief.” Oregon v. Elstad, 470 U.S. 298, 317
29
(1985). Conversely, a waiver of the right to remain silent renders self-incriminating, inculpatory
statements admissible, and such waiver may be made orally, in writing, or even implied by the
interrogated person’s conduct. See North Carolina v. Butler, 441 U.S. 369, 374–376 (1979).
Correspondingly, a trial court can properly admit a defendant’s inculpatory statements if the court
finds that the government met its preponderance-of-the-evidence burden of showing that the
statements were made with a valid waiver of Miranda rights. See Colorado v. Connelly, 479 U.S.
157, 168–69 (1986).
The question of whether the waiver at issue was “valid” is resolved on a case-by-case basis.
Under Miranda, a waiver is valid if it is made “voluntarily, knowingly and intelligently.” Miranda,
384 U.S. at 475. In determining whether there has been a valid waiver of Miranda rights, a court
must conduct a two-part inquiry ensuing from the “totality of the circumstances” test. See Moran
v. Burbine, 475 U.S. 412, 421 (1986). First, the court looks to the voluntariness of the waiver
statement in order to determine whether the waiver was made “freely,” as opposed to being
obtained by coercion. See id. Second, the court must consider whether the waiver statement was
made “knowingly and intelligently,” in the sense that the accused was fully aware “both of the
nature of the right being abandoned and the consequences of the decision to abandon it.” Id.
The state courts’ application of Miranda to the facts of this case was not unreasonable.
Petitioner provides virtually no facts to support his contention that the waiver was involuntary. In
his brief before the Appellate Division he stated, “[t]he police deprived the defendant of an
opportunity to consult with counsel before giving an incriminating confession. Detective Samis
conceded that the defendant had asked to make a phone call, but Samis told him that he could
make his call after the end of the interview.” (ECF No. 7–3 at 72.) These allegations, however,
are not corroborated by the record.
30
The transcript of the recorded confession demonstrates that Detective Samis read Petitioner
his Miranda rights and Petitioner affirmed that he understood his rights. (ECF No. 7-3 at 87–89.)
The transcript also shows that Detective Samis asked Petitioner, more than once, if he understood
his rights or needed further explanation. (Id.) With respect to Petitioner’s third Miranda right
related to legal representation, Detective Samis stated: “[n]umber three says you have the right to
consult with an attorney, before speaking to the police, and you have, and have an attorney present
before and during questioning, do you understand that?” (Id. at 88.) Petitioner responded,
“[y]eah.” (Id.) At the Miranda hearing Detective Samis testified that Petitioner initialed his name
next to each Miranda right. (ECF No. 7-18 at 6.) At the conclusion of the interview, Detective
Samis stated: “. . . we’re just waiting, the judges are actually in a judge meeting right now, so we
just don’t know what it is and we’ll let you make phone calls once we find out ok.” (Id. at 95.)
There is nothing in the transcript to indicate that Petitioner requested to speak with an attorney or
requested to make a phone call.
On cross-examination, Petitioner questioned Detective Samis about a phone call, and the
Detective stated that Petitioner never requested to make a phone call:
Q:
Detective Samis, on line three it says that you have
the right to consult an attorney before speaking to the police
and to have an attorney present before and during the
questioning. Do you remember whether or not if I asked you
for a phone call?
A:
On that specific question, sir?
Q:
No, at any time.
A:
I don’t believe so, sir.
Q:
You don’t believe so?
31
A:
I know in the end, sir, that I said I would be able to
give you a phone call so if you mentioned to it before that I
know I said at the end that I would give you a phone call.
Q:
Do you know if I ever made a phone call or anything?
A:
When I left I’m not sure if you did or you didn’t, sir.
(ECF No. 7-18 at 7.)
The state appellate court explicitly rejected the argument that Petitioner was not given an
opportunity to make a phone call or consult with an attorney. Having reviewed the record this
Court finds that the state courts’ factual findings are supported by the record. While Detective
Samis could not conclusively recall that Petitioner did not request a phone call, he indicated that
he believed Petitioner had not. Because a state court’s factual basis for their conclusions are
“presumed to be correct” and Petitioner has not shown “by clear and convincing evidence” that
those factual conclusions were unreasonable, Petitioner has not met his burden to show he is
entitled to relief on this claim. See 28 U.S.C. § 2254(e)(1).
K. Ground Eleven: Police Records
In his final ground for habeas relief, Petitioner argues that his constitutional rights were
violated when the trial court denied his motion to obtain police records. (ECF No. 1 at 15.)
The Appellate Division denied this claim, explaining:
Potter argues that he should have been allowed access to the
personnel records of the police officers and detectives who
conducted the surveillance. He bases his claim on information given
to him by an inmate with whom he spoke while awaiting trial in the
Monmouth County Correctional Facility. The allegations had no
bearing on the case against Potter and were not factually supported
at the time of the motion.
Although a defendant may attack a prosecution witness’s credibility
by revealing possible biases, prejudices, or ulterior motives as they
relate to the issues in the case, State v. Harris, 316 N.J. Super. 384,
397 (App. Div. 1998), the question of whether police personnel
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records should be disclosed involves a balancing between the public
interest in maintaining the confidentiality of police personnel
records against a defendant’s right of confrontation. Id. at 397–98.
To obtain such records, a defendant must advance ‘some factual
predicate which would make it reasonably likely’ that the records
contain some relevant information, and establish that the defendant
is not merely engaging in a fishing expedition. Id. at 398 (quoting
State v. Kaszubinski, 177 N.J. Super. 136, 139 (Law Div. 1980)).
The motion judge correctly concluded that Potter failed to meet his
burden and properly denied his request.
Potter, 2015 WL 3843309, at *14.
Petitioner appears to argue here and in state court, that the trial court’s denial of this motion
violated his rights under the Confrontation Clause. He explains that the police records would have
aided him on cross-examination, to impugn the credibility of various officers based on their prior
bad acts. (ECF No. 7-4 at 18–26.)
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. amend. VI.
“The right of confrontation . . . means more than being allowed to confront the witness physically.
Indeed, [t]he main and essential purpose of confrontation is to secure for the opponent the
opportunity of cross-examination.’” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (internal
citations and quotations omitted) (emphasis in original). “[A] criminal defendant states a violation
of the Confrontation Clause by showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form of bias on the part of the
witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the witness.’” Id. at 680 (quoting Davis v. Alaska, 415
U.S. 308, 318 (1974)).
Application of the above standards reveals that Petitioner was not denied his constitutional
rights. The record indicates that the officers identified by Petitioner testified, and each officer was
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cross-examined. (See ECF Nos. 7-20 through 7-22.). Thus, the testimony of the officers did not
implicate the Confrontation Clause. See California v. Green, 399 U.S. 149, 162 (1970) (“For
where the declarant is not absent, but is present to testify and to submit to cross-examination, our
cases, if anything, support the conclusion that the admission of his out-of-court statements does
not create a confrontation problem.”).
To the extent Petitioner is arguing that he was unable to impeach the officers without the
police records, this claim likewise has no merit. The trial judge denied Petitioner’s motion to
obtain the police records explaining that under New Jersey law it is the moving party’s burden to
advance a factual predicate for the discovery. (ECF No. 7-14 at 12.) The judge noted that
Petitioner supplied no documents or information to support his allegations of bad acts by the
officers. (Id. at 12.) That factual finding is entitled to deference. See 28 U.S.C. § 2254(e)(1).
Thus, any argument that the police records would have revealed bad acts with which Petitioner
could have impeached the officers, is purely speculative and insufficient to establish that
Petitioner’s rights under the Confrontation Clause have been violated. For these reasons, the Court
denies relief on this claim.
V.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “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 that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003);
see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not
34
disagree with this Court’s conclusion that Petitioner has failed to make a substantial showing of
the denial of a constitutional right, Petitioner’s habeas petition is inadequate to deserve
encouragement to proceed further and a certificate of appealability is denied.
VI.
CONCLUSION
For the reasons stated above, the Petition for habeas relief is DENIED and Petitioner is
DENIED a certificate of appealability. An appropriate order follows.
Dated: June 29, 2018
/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge
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