State v. Merritt

• Decision Date: 03 February 2023
• Docket Number: A-2500-19
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARRYL M. MERRITT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARRYL M. MERRITT, Defendant-Appellant.

No. A-2500-19

Superior Court of New Jersey, Appellate Division

February 3, 2023

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.

Argued November 9, 2022

On appeal from the Superior Court of New Jersey, Law Division Ocean County, Indictment No. 17-12-1992.

Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Ashley Brooks, Assistant Deputy Public Defender, of counsel and on the briefs).

Shiraz I. Deen, Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor attorney; Samuel Mazarella, Chief Appellate Attorney, of counsel; Shiraz I. Deen, on the brief).

Before Judges Geiger and Susswein.

PER CURIAM

Defendant Darryl M. Merritt, appeals from his jury trial convictions for multiple counts of controlled dangerous substances (CDS) offenses and obstruction of the administration of law. He contends the trial court committed several evidentiary errors that independently and cumulatively warrant reversal. Defendant also contends the trial court committed structural error by closing the courtroom during the testimony of a detective to protect her identity because she was working as an undercover officer at the time of the trial.

We focus on defendant's contention the courtroom was improperly closed to the public in violation of the principles set forth in Waller v. Georgia, 467 U.S. 39 (1984). After carefully reviewing the record in light of the governing case law, we conclude the trial court did not address all of the required findings enunciated in Waller, including, most notably, the requirement to consider alternatives to closing a courtroom to the public. Because this constitutes structural error, we are constrained to reverse defendant's convictions and remand for a new trial.

I.

In December 2017, defendant was charged by indictment with eleven counts of various second and third-degree CDS offenses (counts one through eleven) and a single count of fourth-degree obstructing the administration of law or other governmental function (count fourteen).^[1]

Prior to trial, the State moved to close the courtroom during the testimony of an undercover detective to protect her identity. The defense objected. The trial court did not convene an evidentiary hearing but heard oral argument on the motion. The following day, the court granted the State's motion, rendering an oral opinion. At that time, the State moved to dismiss counts one through five of the indictment.

In October 2019, the jury trial was conducted over the course of four days. The courtroom was closed for approximately one hour during the detective's testimony, which spanned forty-seven pages of trial transcript. The jury found defendant guilty on all remaining counts. On December 17, 2019, the trial judge imposed an aggregate twelve-year sentence with a six-year period of parole ineligibility.

Because we focus on the trial court's decision to close the courtroom during a portion of the trial, we need only briefly summarize the facts elicited at trial. The police executed a residential search warrant. They found eleven "bricks" of heroin in the bathroom from which defendant emerged. His driver's license, a digital scale, a plastic bag containing cocaine, a quantity of small plastic bags, and part of a blender with cocaine residue were also found in the bedroom next to the bathroom.

Codefendant John Cameron testified defendant lived in the house and that the bedroom where the drugs and paraphernalia were found was defendant's bedroom. Cameron stated defendant paid rent in cash. Cameron produced no proof of a lease or rent payments.

The State presented two expert witnesses. Sergeant Casey Long of the Ocean County Prosecutor's Office Narcotics Strike Force testified as a narcotics distribution expert about how heroin and cocaine are packaged, the meaning of the terms "brick" and "bundle," and that mixing heroin and fentanyl is a common technique of distributors to increase potency and stretch dosage supplies. Joanne Maffei, a forensic chemist, testified that samples from the bricks seized from the bathroom tested positive for a mixture of heroin and fentanyl and the substance seized from the bedroom tested positive for cocaine.

Codefendant David Merritt, defendant's brother, testified for the defense and claimed defendant did not live at the house that was searched by police. He averred defendant instead lived with their father in Neptune. David^[2] claimed ownership of the heroin and cocaine found in the bathroom and the bedroom where defendant's driver's license was found. David testified the bedroom next to the bathroom was his, not defendant's. He claimed that defendant's driver's license was in the bedroom because he did not have his own license and had been borrowing defendant's license. Defendant's father also testified that defendant lived with him in Neptune.

Defendant raises the following contentions for our consideration:

POINT I

THE STATE ELICITED TESTIMONY THAT DEFENDANT HAD BEEN CHARGED IN ANOTHER COUNTY WITH OBSTRUCTION, HAD ALLEGEDLY BEEN SELLING HEROIN OUT OF THE HOUSE WHERE THE DRUGS WERE FOUND, AND WAS ARRESTED WITH MARIJUANA. THE IMPROPER ADMISSION OF THESE OTHER BAD ACTS REQUIRES REVERSAL.

A. TESTIMONY ABOUT [DEFENDANT]'S CRIMINAL CHARGE VIOLATED N.J.R.E. 404(B) AND WAS EXTREMELY HARMFUL. REVERSAL IS REQUIRED, ESPECIALLY GIVEN THE LACK OF AN ADEQUATE LIMITING INSTRUCTION.

1. THE PREJUDICIAL EVIDENCE OF THE CRIMINAL CHARGED VIOLATED N.J.R.E. 404(B) AND REQUIRES REVERSAL.

2. THE ISSUED INSTRUCTION ADDRESSING THE TESTIMONY ABOUT [DEFENDANT]'S CRIMINAL CHARGE WAS INADEQUATE AND INEFFECTIVE.

B. CAMERON'S TESTIMONY THAT [DEFENDANT] REGULARLY SOLD DRUGS FROM THE HOUSE VIOLATED N.J.R.E. 404(B). REVERSAL IS REQUIRED, PARTICULARLY GIVEN THE LACK OF LIMITING INSTRUCTION.

1. ADMISSION OF TESTIMONY ABOUT [DEFENDANT]'S ALLEGED HISTORY OF DRUG DEALING VIOLATED N.J.R.E. 404(B) AND REQUIRES REVERSAL.

2. THE COURT COMMITTED REVERSIBLE ERROR IN NOT PROVIDING ANY LIMITING INSTRUCTION WHATSOEVER ADDRESSING THE TESTIMONY ABOUT [DEFENDANT]'S HISTORY OF SELLING HEROIN.

C. TESTIMONY THAT A SMALL AMOUNT OF MARIJUANA WAS FOUND ON [DEFENDANT]'S PERSON AND THAT HE WAS INITIALLY CHARGED WITH MARIJUANA POSSESSION VIOLATED N.J.R.E. 404(B). THIS WARRANTED

REVERSAL, ESPECIALLY GIVEN THE LACK OF LIMITING INSTRUCTION.

1. ADMISSION OF EVIDENCE RELATING TO MARIJUANA POSSESSION WAS IMPROPER AND CONSTITUTED PLAIN ERROR.

2. THE COURT'S FAILURE TO ISSUE A LIMITING INSTRUCTION TO ADDRESS THE TESTIMONY ABOUT THE MARIJUANA FOUND ON [DEFENDANT]'S PERSON AND DISMISSED CHARGE REQUIRES REVERSAL.

D. THE COURT'S FAILURE TO ISSUE A LIMITING INSTRUCTION TO ADDRESS THE TESTIMONY ABOUT THE MARIJUANA FOUND ON [DEFENDANT]'S PERSON AND DISMISSED CHARGE REQUIRES REVERSAL.

POINT II

TESTIMONY AND ARGUMENT ABOUT THE DANGEROUSNESS OF DRUGS WAS IRRELEVANT AND HIGHLY PREJUDICIAL, REQUIRING REVERSAL.

POINT III

THE CUMULATIVE EFFECT OF THE ADMISSION OF IRRELEVANT AND HIGHLY PREJUDICIAL PROPENSITY AND INFLAMMATORY EVIDENCE REQUIRES REVERSAL.

POINT IV

[DEFENDANT]'S RIGHT TO A PUBLIC TRIAL WAS UNJUSTIFIABLY VIOLATED WHEN THE COURT CLOSED THE COURTROOM DURING THE TOTALITY OF [THE UNDERCOVER DETECTIVE]'S TESTIMONY, OVER DEFENDANT'S OBJECTION. A NEW TRIAL IS REQUIRED.

A. [DEFENDANT]'S RIGHT TO A PUBLIC TRIAL WAS UNJUSTIFIABLY VIOLATED BECAUSE: THE STATE DID NOT ESTABLISH AN OVERRIDING INTEREST IN CLOSURE; THE COURT FAILED TO EXPLORE REASONABLE ALTERNATIVES; THE CLOSURE WAS BROADER THAN NECESSARY; AND THE COURT DID NOT MAKE SUFFICIENT FACTUAL FINDINGS TO SUPPORT CLOSURE.

1. THE VAGUE AND UNSUPPORTED ASSERTION THAT CLOSURE WAS NECESSARY TO PROTECT THE UNDERCOVER OFFICER, WITHOUT ANY ADDITIONAL INFORMATION, FELL SHORT OF THE SPECIFIC AND CONCRETE OVERRIDING INTEREST THE STATE WAS REQUIRED TO ESTABLISH.

2. THE TRIAL COURT DID NOT CONSIDER REASONABLE ALTERNATIVES TO CLOSURE, SUCH AS THE USE OF A SCREEN OR A PARTIAL CLOSURE, AND CLOSURE

WAS A BROADER REMEDY THAN NECESSARY.

3. THE COURT DID NOT ENGAGE IN THE PROPER ANALYSIS (IT APPLIED THE WRONG TEST) OR MAKE FINDINGS ADEQUATE TO SUPPORT CLOSURE.

B. THIS COURT SHOULD NOT APPLY THE TRIVIALITY EXCEPTION TO THE WALLER TEST HERE. BUT EVEN IF IT DOES, THE CLOSURE WAS NOT TRIVIAL BECAUSE IT WAS COMPLETE, INTENTIONAL, AND OCCURRED DURING A CRITICAL PART OF THE TRIAL.

II.

The right to a public trial is enshrined in the Sixth Amendment to the Constitution of the United States. Waller, 467 U.S. at 44. Article I, Paragraph 10 of the New Jersey Constitution affords the same right. State v. Cuccio, 350 N.J.Super. 248, 260 (App. Div. 2002). "The requirement of a public trial is for the benefit of the accused . . . ." Waller, 467 U.S. at 46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)). This guarantee is also a right belonging to the public secured by the First Amendment to the Constitution of the United States and Article 1, Paragraph 6 of the New Jersey Constitution. Cuccio, 350 N.J.Super. at 260 (citing Press-Enterprise Co. v. Superior Ct. of California, 464 U.S. 501 (1984)).

The right to a public trial is not absolute, although there is a "presumption of openness." Press-Enterprise, 464 U.S. at 510. In rare instances, the right to an open trial may give way to overriding, competing interests. Waller, 467 U.S. at 45. However, "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." Presley v....