STATE OF NEW JERSEY VS. RAJEEM A. SCOTTÂ (11-04-0648, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5694-13T4
STATE OF NEW JERSEY,
Plaintiff–Respondent,
v.
TERRANCE D. HARRIS, a/k/a SHAKEEL
DAWUD, DAVID HARRIS, and TERRIN HARRIS,
Defendant-Appellant.
__________________________________________
Submitted November 3, 2016 – Decided March 16, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment
No. 11-01-0228.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Lila Leonard,
Deputy Attorney General, of counsel and on
the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following our remand, defendant Terrance D. Harris appeals
from the May 27, 2014 Law Division order again denying his
motion to suppress evidence of illicit drugs found in his home
during the execution of a search warrant. For the reasons that
follow, we affirm.
I
The evidence adduced during the suppression hearing is set
forth in our opinion remanding this matter to the trial court,
State v. Harris, A-4000-11 (App. Div. Mar. 21, 2014), but to put
the issues on appeal in context, a brief summary of the evidence
is required.
It is not disputed the police searched defendant's home the
morning of November 4, 2010. The State maintained the search
was conducted after the police obtained a search warrant.
Defendant asserted the search occurred before the State secured
a search warrant, pointing out the judge who signed the search
warrant hand-wrote on the warrant that he signed it on November
4, 2010, at 3:30 p.m. Thus, because the search warrant
seemingly showed the search warrant was acquired after the
search, defendant argued the State violated his Fourth Amendment
rights to be free from warrantless searches of his home, see
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State v. Johnson, 193 N.J. 528, 553-54 (2008), warranting
suppression of the seized evidence.1
At the conclusion of the suppression hearing, the trial
court found the State obtained the search warrant at 3:30 p.m.
on November 3, 2010, the day before the search. The court
concluded the judge who signed the search warrant made a
"scrivener's error" when he dated the warrant November 4, 2010,
and had in fact signed it on November 3, 2010. The evidence in
support of the court's finding was as follows.
Steven Hadley, a detective in the Egg Harbor City Police
Department, testified he acquired a search warrant to search
defendant's home, but could not remember the date he went to the
courthouse to obtain a signed warrant from the judge. However,
Hadley was presented with a copy of a log sheet showing the
signatures of those members of law enforcement who entered the
courthouse complex on November 3, 2010.2 He testified his
signature appears on that log sheet, as does his hand-written
notation stating the name of the judge he intended to see; the
1
See U.S. Const. amend. IV.
2
It is not disputed members of law enforcement who are
carrying a weapon must sign a log sheet before entering the
courthouse complex. The purpose is to enable courthouse
personnel to keep track of who has a weapon in the courthouse,
and ensure those who enter the courthouse with a weapon leave
with that weapon.
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judge is the same one who ultimately signed the subject search
warrant. The log sheet shows Hadley signed the log sheet at
3:30 p.m.
Hadley noted he has signed a log sheet every time he has
entered the court complex; his name does not appear on the
November 4, 2010 sheet. He also testified he has never executed
a search warrant without first obtaining a search warrant.
Hadley mentioned his signature also appears on the affidavit of
probable cause. We note the judge who signed the search warrant
notarized Hadley's signature on the affidavit.
In response to questioning by defense counsel, Hadley again
acknowledged he had no independent recollection of what occurred
on November 3, 2010. Hadley merely reconstructed from the
documents he reviewed that he had obtained a search warrant on
November 3, 2010, from the judge who signed the warrant.
An assistant prosecutor testified Hadley sent him an email
on November 1, 2010, attached to which was a draft of a form of
search warrant for the assistant prosecutor's review and
approval. Thereafter, the assistant prosecutor telephoned
Hadley, authorized him to apply for the search warrant, and
advised he approved of the form of search warrant, which the
assistant prosecutor emailed back to Hadley on November 3, 2010,
at 10:55 a.m.
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The trial court determined the documents about which Hadley
testified provided strong circumstantial evidence the search
warrant was signed on November 3, 2010, and "dovetailed with the
. . . testimony of [the assistant prosecutor] and Hadley, who
appeared credible with no ax to grind against anybody." Because
the search warrant was signed before the search, the court found
there was no basis to grant defendant's motion to suppress.
After his motion to suppress evidence was denied, defendant
pled guilty to second-degree possession of a controlled
dangerous substance with intent to distribute, N.J.S.A. 2C:35-
5(a)(1), (b)(2). He was sentenced to an eight-year term of
imprisonment with a four-year period of parole ineligibility.
Defendant filed a direct appeal. In our opinion, we
affirmed the trial court's factual findings. See Harris, supra,
(slip op. at 4). Therefore, it is an established fact the
search warrant was issued on November 3, 2010, before the search
of defendant's home was executed the following morning.
However, during the course of delivering its oral opinion,
the trial court stated, "there's a presumption of validity in
these warrants." Citing State v. Robinson, 200 N.J. 1, 7-8
(2009), we noted in our opinion a search warrant cannot be
presumed valid until the State first establishes the search
warrant was issued in accordance with the Rules of Court.
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Harris, supra, (slip op. at 3); see Robinson, supra, 200 N.J. at
7-8. However, once that has been accomplished, the "burden of
demonstrating the invalidity of such a search is placed upon the
defendant. The defendant must establish that there was no
probable cause supporting the issuance of the warrant or that
the search was otherwise unreasonable." Robinson, supra, 200
N.J. at 7-8. Concerned the trial court may have presumed the
search warrant was valid before the warrant was properly issued
and that such presumption may have influenced the court's
assessment of the evidence, we remanded the matter to the trial
court for its reconsideration. See Harris, supra, (slip op. at
4).
In addition, we granted defendant's motion to supplement
the appellate record with new information he believed relevant
on the issue of Hadley's credibility, but we did not consider
this information in deciding the appeal. Ibid. We left the
question whether to supplement the record to the trial court's
discretion on remand. Ibid.
On remand, the trial court clarified it knew at the time it
denied defendant's suppression motion that there was no
presumption the search warrant was valid before the State
established the warrant had been issued in accordance with the
Rules of Court. The trial court explained that when it stated
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"there is a presumption of validity in these warrants," it was
referring to warrants that had been issued in accordance with
the law.
The trial court further noted because the subject search
warrant had been signed by a judge before the search, the
warrant was valid; the fact the judge affixed the wrong date to
the warrant did not affect its legitimacy because there was
sufficient proof the warrant was signed before the search. The
trial court commented it was aware that once the warrant was
determined to be valid, the burden of proof shifted to defendant
to show the search was not, which defendant failed to
demonstrate. For that reason, the trial court denied
defendant's motion at the conclusion of the suppression hearing
and, on remand, found no basis to change that decision and again
denied his motion.
The trial court considered the fact there allegedly was
evidence, discovered after the suppression hearing, Hadley had
been charged with misconduct for having sexual contact with
various women while on duty. On remand, defendant requested a
new hearing so he could question Hadley about these charges,
arguing such evidence might affect Hadley's credibility and the
trial court's assessment of his testimony. Defendant also
argued because he had called Hadley as a witness at the hearing
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(to establish Hadley did not recall the date the search warrant
was signed), the court might view the evidence differently if
there were a new hearing and the State called Hadley as its
witness instead.
The court declined to order a new hearing. First, it noted
Hadley's attorney forwarded a letter to the court stating Hadley
would assert his Fifth Amendment right to not testify if
questioned about any of the charges.3 Second, the court observed
Hadley's testimony merely supplemented the documentary evidence,
commenting it was the latter evidence that was pivotal to
establishing the search warrant was signed on November 3, 2010.
The court observed, "Hadley[,] when you really come down to
it[,] . . . was a small cog in the overall hearing and
testimony. All he did was confirm things. Confirmed yes, I
signed in on that date. That's what the sign-in shows."
II
On appeal, defendant presents the following arguments for
our consideration:
POINT I – THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT AN EVIDENTIAL HEARING.
POINT II - THE MOTION JUDGE SHOULD HAVE
RECUSED HIMSELF FROM THE PROCEEDING.
3
See U.S. Const. amend. V.
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POINT III – THE SEARCH WAS CONDUCTED
ILLEGALLY, WITHOUT A TIMELY WARRANT.
Defendant filed a supplemental brief as a self-represented
litigant, in which he presents the following arguments:
POINT I – THE SEARCH EXECUTED AT THE
DEFENDANT[']S RESIDENCE OCCURRED BEFORE THE
SEARCH WAS AUTHORIZED
a. All of the moving papers
support the fact that the search
was executed prior to it being
authorized by [the judge].
b. According to the log book sign
in sheet it was impossible for
[the judge] to sign the moving
papers at 3:30 p.m. on November 3,
2010.
c. The business log for the [court
house] does not stand up to true
and unbiased scrutiny.
POINT II – THE DATE ON THE SEARCH WARRANT
RETURN SUPPORTS THAT THE SEARCH HAPPENED
WITHOUT A VALID WARRANT.
POINT III – THE EMAILS BETWEEN DETECTIVE
HADLEY AND [THE ASSISTANT PROSECUTOR] DO NOT
PROVE WHEN DETECTIVE HADLEY SUBMITTED THE
AFFIDAVIT TO [THE JUDGE].
POINT IV – THE ARREST AND ALLEGATIONS OF
OFFICIAL MISCONDUCT UPON DETECTIVE HADLEY
LEND CREDENCE TO THE DEFENDANT'S ASSERTIONS
OF IMPROPRIETY IN THE CASE AT BAR.
POINT V – THE DEFENDANT'S ATTORNEY PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL.
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a. The defendant's attorney failed
to vigorously pursue the
suppression issue.
b. The defendant's attorney should
have called [the judge who signed
the search warrant] as a witness
at the suppression hearing.
The trial court fulfilled our request to address whether it
correctly understood each party's burden of proof when it
considered the evidence. We are satisfied the court understood
how the burdens of proof were allocated between the parties, and
correctly applied the law. The trial court also addressed our
second question, whether to reopen the suppression hearing to
consider the charges of misconduct against Hadley. In our view,
the court did not abuse its discretion when it declined to do
so.
After examining the record and briefs, we conclude none of
defendant's arguments have any merit and do not warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Nonetheless, we add the following comments.
Most of defendant's arguments pertain to and attack the
trial court's factual finding the search warrant was signed
before defendant's home was searched. That finding was
previously affirmed by us; it was not subject to another
challenge before this court, unless the trial court had not
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correctly viewed the evidence in light of each party's burden of
proof and such error affected its ultimate decision, or unless
another suppression hearing were held. Neither condition
materialized.
Defendant appeals from the trial court's decision to not
reopen the hearing for the purpose of allowing Hadley to testify
about the misconduct charges. However, "[a] trial court's
exercise of [its] discretionary power will not be disturbed on
appeal 'unless it has been clearly abused.'" State v. Saavedra,
222 N.J. 39, 55-56 (2015) (quoting State v. Warmbrun, 277 N.J.
Super. 51, 60 (App. Div. 1994)). The trial court did not abuse
its discretion when it declined to reopen the hearing to explore
the topic of Hadley's alleged misconduct. First, Hadley advised
he would exercise his right not to testify under the Fifth
Amendment if questioned about these charges. Second, in light
of the documentary evidence, Hadley's testimony was not as
essential to the court's findings as defendant assumes.
As for defendant's claim counsel was ineffective, normally
this court does not hear ineffective assistance of counsel
claims on direct appeal, not to mention our remand to the trial
court was limited to considering just the two issues. However,
we have considered defendant's arguments because the record
discloses all facts essential to considering defendant's
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ineffective assistance claims. See State v. Allah, 170 N.J.
269, 285 (2009). Having done that, we are satisfied counsel did
not act outside the range of professionally competent
assistance.
Specifically, defendant claims his attorney told the court
at the outset of the suppression hearing he was not prepared to
proceed because he had just received discovery from the State.
Defendant claims counsel's comment caused the court to conduct a
"truncated hearing," which failed to "protect his rights under
the law." The record does not bear out either claim.
Counsel never asserted he was not prepared for the hearing.
But even if he had, being unprepared for a hearing because an
adversary provided discovery immediately before such hearing is
not ineffective assistance. Ineffective assistance occurs when
counsel commits an error so egregious he or she was not
functioning effectively as guaranteed by the Sixth Amendment to
the United States Constitution. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984). There is no evidence counsel was unprepared for the
hearing, and then failed to request an adjournment to enable him
to get ready for the hearing.
Further, the defect in performance must be such that there
exists a "reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have
been different." Id. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d
at 698. There is no evidence counsel caused the court to
conduct a "truncated" hearing or otherwise induced it to
jeopardize defendant's right to a fair hearing.
Affirmed.
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