STATE OF NEW JERSEY v. RICHARD GILLISON (2011)

Defendant appeals from his convictions for resisting arrest and drug-related offenses.   He argues that he was denied a fair trial because (1) he was dressed in his jail clothing, (2) his counsel was ineffective, and (3) the judge failed to grant his request for a mistrial.   We disagree and affirm.

On June 5, 2007, Patrolmen James Miyasato and James DiPiazza conducted a property check of a multi-family building located within 1000 feet of a school.   Dressed in full police uniforms, they entered a common hallway where Patrolman Miyasato observed defendant conduct what appeared to be a drug transaction.   When defendant spotted the officers, he ran up to the second floor and Patrolman Miyasato chased him.   Patrolman DiPiazza and Patrolman Terence Duffy, another officer assigned to conduct the property check, followed.

Defendant arrived at codefendant Danielle Smith's apartment, entered it, and attempted to close the door.   Patrolman Miyasato struggled with defendant to keep the door open.   When the two other officers arrived at the door, they assisted Patrolman Miyasato, opened the door, and entered the apartment.   A pit bull lunged and barked at the officers, Patrolman Miyasato jumped back into the hallway, the other two officers remained in the apartment with defendant, and the door shut.   Patrolmen DiPiazza and Duffy drew their revolvers to protect themselves from the dog and defendant ran into a bedroom area and attempted to shove objects under a mattress.   Patrolman Duffy fired two shots at the pit bull and killed it because defendant ignored their repeated warnings to remove the dog and their safety was in jeopardy.

Patrolman DiPiazza arrested defendant in the bedroom area.   The officers discovered 23 yellow bags of crack cocaine and 189 bags of heroin on top of a bedroom dresser, 39 bags of heroin packaged in the shape of a brick near a mattress, and numerous glassine envelopes containing heroin under the matress.   All the heroin bags had the words “[t]op [s]ecret” stamped on them in red letters.   The officers also located $79.

A search warrant was then obtained and the police located plastic baggies in the bedroom dresser, and rubber bands commonly used to bind heroin together, 163 glassine bags of heroin in a kitchen cabinet wrapped in a brick form together with additional rubber bands, and seven loose glassine bags of heroin in the kitchen and above the door of the apartment.

Codefendant pled guilty and testified for the State.   She testified that defendant paid her to use her apartment to sell drugs.   Defendant did not testify.

At the conclusion of the trial, defendant was found guilty of third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1);  second-degree possession of a controlled dangerous substance with intent to distribute (heroin), N.J.S.A. 2C:35-5a(1) and b(2);  third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a;  third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1);  third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3);  third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a;  and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2).   The judge granted the State's motion for a mandatory extended prison term.   He sentenced defendant to an aggregate eleven year and four-months prison term with four and one-half years without parole, and imposed the appropriate fines and penalties.

On appeal, defendant raises the following points:

POINT I

IT WAS PLAIN ERROR TO ALLOW THE ENTIRE TRIAL TO TRANSPIRE WITH DEFENDANT SEATED CLAD IN JAIL CLOTHING, DENYING DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL

POINT II

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT TRIAL

POINT III

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO PURSUE A MOTION OR OTHERWISE DEFEND ON THE BASIS THAT POLICE HAD NO PROBABLE CAUSE TO ENTER THE BUILDING WHERE THEY PURPORTEDLY SAW DEFENDANT ENGAGED IN CRIMINAL CONDUCT

POINT IV

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL WHEN DEFENSE COUNSEL STIPULATED TO THE USE OF THE CDS LAB REPORT, WHILE ALSO NOT OTHERWISE PURSUING DEFENDANT'S OBJECTIONS TO SAME AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESS AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT IMPROPERLY ADMITTED THE STATE POLICE LABORATORY REPORT INTO EVIDENCE WITHOUT TESTIMONY FROM THE CHEMIST WHO PERFORMED THE ANALYSIS AND PREPARED THE REPORT

POINT V

IT WAS PLAIN ERROR FOR THE COURT NOT TO DECLARE A MISTRIAL WHEN TESTIMONY REGARDING KEYS BEING FOUND ON THE DEFENDANT WAS SUDDENLY BLURTED OUT AT TRIAL WITH NO PRIOR DISCOVERY PROVIDED

POINT VI

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO ADVANCE ANY SENTENCING ARGUMENTS IN WRITING OR ORAL ARGUMENT, DESPITE THERE HAVING BEEN SUCH ARGUMENTS IN DEFENDANT'S PRO SE BRIEF

We reject defendant's argument that he was prejudiced because he wore his jail clothing during the trial.   He knowingly waived his right to wear civilian clothes that were reasonable and adequate.

Before the trial began, defendant was offered to choose from three sets of civilian clothing:  the original clothing he was wearing when the police arrested him, a white dress shirt and a pair of dress slacks purchased by his counsel, and clothing purchased by his family.   He rejected the clothes he wore when he was arrested because they did not fit.   Although the clothing purchased by his counsel and family fit, he refused to wear them.

Our courts have been “especially vigilant in protecting a defendant's right not to be compelled to appear at trial in prison attire” in order to protect the presumption of innocence.  State v. Maisonet, 166 N.J. 9, 18 (2001).   A defendant cannot be required to go to trial in his prison clothing, however, that same defendant does not “have the right to dictate to the court which civilian clothing he will wear.”  State v. Herrera, 385 N.J.Super. 486, 499 (App.Div.2006)(internal quotations and citation omitted).   The defendant must be provided with “civilian clothing of his own” or with clothing offered to him by the State.  Id. at 499-500.   Where a defendant refuses civilian clothing offered by the State, the trial court's assessment of whether the defendant executed a “ ‘knowing, intelligent and voluntary waiver’ of his right not to wear prison garb must include an assessment of whether the civilian clothes that defendant rejected were of reasonably suitable quality, cleanliness and design.”  Ibid. This assessment ensures that the clothing will not work to diminish a defendant's credibility before the jury.  Id. at 499.

The judge questioned defendant appropriately concerning his deliberate choice to wear prison clothes rather than reasonable civilian clothing.   The judge appropriately “determine[d] that the defendant was offered, and rejected, civilian clothes that were reasonable and adequate under the circumstances.”   Id. at 500.   After he acknowledged that “we can't force [defendant] to wear the clothes,” the judge instructed the jury not to “draw any inference unfavorable to the defendant by reason of the way Richard Gillison has chosen to be dressed during the course of this trial.”   Under these circumstances, we see no prejudice to defendant.

Next, defendant contends that the judge committed error by not granting his request for a mistrial when Lieutenant Griffin testified, without any documented proof, that keys to the apartment were in defendant's possession at the police station.   We disagree.

Lieutenant Griffin searched the apartment after the police obtained a search warrant.   On direct examination he testified that before he conducted the search of the apartment, he was present when keys were recovered from defendant in the narcotics office.

Defense counsel questioned the witness thoroughly concerning when, where, and how the keys to the apartment were discovered.   Defense counsel established that the police failed to document the discovery of the keys from defendant while they searched him in the narcotics office.   He implied that the witness lied or was mistaken.   On cross-examination, defense counsel asked several open-ended questions, including:

Q: And is there any mention of keys in any of the reports that you reviewed in regards to this case?

A: No.

Q: In regards to these keys, were they ever checked to see whether they fit the locks of the apartment ․ ?

A: That's how I know they were taken from [defendant] in the office because we took the keys back to the apartment with us to check to make sure that they did fit.

Q: And that was checked, sir?

A: Yes.

Defense counsel then established that the only police report that mentioned keys is one from the arresting officers that listed the keys as an item located in the apartment.   Defense counsel requested a mistrial and stated that:

For an officer to basically not answer my question and then just blurt out that keys were found on my client and somehow they're going back and these keys matched the apartment, Judge, I don't know how he could just blurt that out and get away with it.

Defense counsel used the information he learned concerning the keys and argued in summation that:

There was a time when witnesses would come in here and put their hands on the Bible and-tell the truth.   That's what we call testifying.   There's come a time now when people come in her[e] and put their hand on the Bible and lie.   That's what we defense attorneys call testi-lying.   And that's what we have here in this case, testi-lying.

․

․ [T]here is a ․ police tag that states quite clearly that the keys were found in the apartment.   Keys were found in the apartment.   They weren't found on [defendant].   We took those same keys, we went back to the apartment and we opened the door ․ it's not true.   And we know it's not true because ․ it's not in the report.

We had one police officer even admit it's in there.   Oh, but it's wrong.   It's a mistake.

Defense counsel made no objection during the examination of Lieutenant Griffin.   Pursuant to Rule 2:10-2:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

“Under that standard, ‘[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.’ ”  State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).   Here, defense counsel established that the police reports did not indicate keys were located on defendant at the police station, but rather, were located in the apartment.   In summation, defense counsel emphasized that Lieutenant Griffin was either wrong or lied.   The jury was free to accept or reject that argument.   We perceive no error, let alone plain error, and conclude that the judge did not abuse his discretion by denying defendant's request for a mistrial.

Finally, defendant contends that he received ineffective assistance of counsel because his counsel failed to (1) file pretrial motions, (2) challenge whether probable cause existed to enter the multi-family building, (3) object to the admissibility into evidence of a laboratory certificate and secure underlying documentation related to it, (4) present witnesses or evidence, (5) present a clear defense, and (6) advance any sentencing arguments.

Regarding defendant's contention that his counsel failed to challenge whether probable cause existed, defendant had no expectation of privacy to the common hallway of the multi-unit dwelling.  State v. Smith, 37 N.J. 481, 496 (1962), cert. denied, 374 U.S. 835, 83 S.Ct. 1879, 10 L. Ed.2d 1055 (1963).   When the police entered the building, they were not conducting a criminal investigation, had no complaints about any occupant of the building, and did not suspect defendant of committing a crime.   They conducted a property check and encountered defendant engaging in what appeared to be a drug transaction.   Under the circumstances, had a motion to suppress been filed, it would have been futile.   Thus, “[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.”  State v. Worlock, 117 N.J. 596, 625 (1990).

Regarding the other claims of ineffective assistance of counsel, those arguments are best reserved for presentation in a petition for post conviction relief.  State v. Preciose, 129 N.J. 451, 459-60 (1992).

Affirmed.

PER CURIAM