State v. Stevenson

• Decision Date: 31 October 2018
• Docket Number: DOCKET NO. A-0633-15T1,DOCKET NO. A-0073-15T1
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY EUGENE STEVENSON, a/k/a ANTHONY E. DIXON, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEROY TAYLOR, a/k/a LEROY T. PRINCE DEVINE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY EUGENE STEVENSON, a/k/a ANTHONY E. DIXON, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEROY TAYLOR, a/k/a LEROY T. PRINCE DEVINE, Defendant-Appellant.

DOCKET NO. A-0073-15T1

DOCKET NO. A-0633-15T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted October 22, 2018

October 31, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fasciale, Gooden Brown and Rose.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-05-0895.

Joseph E. Krakora, Public Defender, attorney for appellant Anthony Eugene Stevenson (Michael J. Confusione, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Leroy Taylor (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the briefs).

Appellant Anthony Eugene Stevenson filed a pro se supplemental brief.

PER CURIAM

In these back-to-back appeals, which we have consolidated for purposes of this opinion, Anthony Eugene Stevenson and Leroy Taylor (collectively defendants) appeal from multiple convictions related to their illegal possession and sale of narcotics and firearms. A grand jury indicted and charged them with committing numerous offenses - more than 100 offenses in total. The State tried defendants separately. We affirm as to Stevenson. As the State concedes, however, the judge erroneously handled Taylor's request to proceed pro se. We therefore reverse for a new trial as to Taylor. We will first address Stevenson's contentions, then those raised by Taylor.

I.

On appeal, Stevenson makes the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM WIRETAPS.

POINT II

THE TRIAL COURT ERRED IN DENYING DISCLOSURE OF THE CONFIDENTIAL INFORMANTS.

POINT III

THE PROSECUTOR WENT BEYOND FAIR COMMENT DURING SUMMATION, DEPRIVING DEFENDANT OF A FAIR TRIAL BELOW.

POINT IV

THE TRIAL COURT INFRINGED DEFENDANT'S RIGHT TO TESTIFY VIA THE COURT'S ERRONEOUS SANDS/BRUNSON RULINGS AND IN FAILING TO ENSURE THAT DEFENDANT WAS AWARE THAT IT WAS HIS PERSONAL RIGHT TO CHOOSE WHETHER OR NOT TO TESTIFY IN HIS OWN DEFENSE BEFORE THE JURY BELOW.

POINT V

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

In a pro se supplemental brief, Stevenson raises the following additional argument:

POINT I

THE TRIAL COURT ERRED WHEN IT DID NOT ACQUIT DEFENDANT OF THE GUN CHARGES BASED ON DUE PROCESS ENTRAPMENT.

Stevenson argues that the court erred by denying his motion to suppress evidence gathered by police pursuant to a wiretap warrant. He asserts that Detective Christopher Camilleri submitted an affidavit containing "false statements." He contends the State failed to show probable cause, and that the request for a wiretap warrant was unnecessary.

An appellate court reviewing an order denying a motion to suppress must uphold the factual findings underlying the trial judge's decision so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). A trial judge's findings of fact should not be disturbed unless they are "so clearly mistaken" that the interests of justice demand their correction. Id. at 244. We review a trial judge's interpretation of the law de novo. State v. Gamble, 218 N.J. 412, 425 (2014).

N.J.S.A. 2A:156A-10 governs the grounds necessary for the issuance of a wiretap warrant. Based on the facts submitted by the applicant, that judge must conclude that probable cause exists or existed to believe that:

a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense as provided in section 8 of P.L.1968, c.409 (C. 2A:156A-8);

b. Particular communications concerning such offense may be obtained through such interception;

c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ;

d. Except in the case of an application meeting the requirements of subsection g. of section 9 of P.L.1968, c.409 (C. 2A:156A-9), the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted, are or have been used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by, such individual;

e. The investigative or law enforcement officers or agency to be authorized to intercept the wire, electronic or oral communication are qualified by training and experience to execute the interception sought; and

f. In the case of an application, other than a renewal or extension, for an order to intercept a communication of a person or on a facility which was the subject of a previous order authorizing interception, the application is based upon new evidence or information different from and in addition to the evidence or information offered to support the prior order, regardless of whether such evidence was derived from prior interceptions or from other sources.

[Ibid.]

If there is no corroborative evidence offered, "the judge shall inquire in camera as to the identity of any informants or any other additional information . . . which the judge finds relevant . . . to determine if there is probable cause . . . ." Ibid.

An application for a wiretap warrant must contain a "particular statement of the facts relied upon by the applicant" including information about the person whose communications will be intercepted; the particular offenses being committed; the type of communications to be intercepted; the nature and location of the targeted facilities; the period of time for which the warrant is sought; and "[a] particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ." N.J.S.A. 2A:156A-9. The New Jersey statutes on wiretap warrants mirror the federal statute, 18 U.S.C.S. § 2518(1), (3). As a result, we give "careful consideration" to federal decisions on this subject. State v. Ates, 217 N.J. 253, 269 (2014).

In his wiretap affidavit, Camilleri gave a detailed description of the investigation as of May 25, 2011. He provided information given by confidential informants (CIs) about Stevenson's distribution of "large quantitiesof heroin in the Long Branch/Red Bank area"; Detective Michael Deaney's undercover purchases of several bricks of heroin from Stevenson from March through May 2011 and Deaney's phone calls arranging those purchases; calls between Deaney and Stevenson about the purchase of a handgun and the recording of the meeting at which Deaney bought a gun from Amos Castro in Stevenson's presence; and a conversation between Deaney and Stevenson about the possibility of buying another gun from "a friend" of Stevenson.

Camilleri asserted that based on the foregoing, he had probable cause to believe that Stevenson and "other as yet unidentified individuals" were utilizing the specified phone numbers to further a "large scale" and "ongoing organized criminal enterprise" involving "narcotics distribution and illicit handgun sales." He noted that the investigation had already revealed information about Stevenson's activities, but stated that "the identity of most of his co-conspirators remain[ed] unknown" and would be difficult to discover due to conspirators' use of prepaid wireless phones and false subscriber information. Camilleri believed that the criminal activity at issue was "far more extensive than what [the] investigation [had] yet identified" and that a wiretap would lead to the discovery of further evidence that Stevenson and his associates were engaged in "schemes"to distribute and dispense controlled dangerous substances (CDS), and to transport illegal handguns into New Jersey to sell them.

Camilleri next explained the need for wiretapping, discussing why other investigatory methods had not been entirely successful or would not likely succeed in uncovering the full extent of the conspiracy. He stated that the investigation had yet to identify Stevenson's heroin suppliers or locations where he and his associates stored heroin. The CIs were unable to provide identities of, or any other information about, Stevenson's possible co-conspirators, and had expressed unwillingness to testify against Stevenson. Deaney's undercover activities were limited to purchases of heroin from Stevenson and a gun from one co-conspirator. Camilleri opined that physical surveillance would be unhelpful since Stevenson likely acted in private locations, and that the execution of search warrants was impossible because police did not yet know what locations to search. Additionally, Camilleri stated that such searches, and/or grand jury subpoenas, would compromise the covert nature of the investigation and could cause conspirators to temporarily suspend their activities to avoid detection. Finally, analysis of call detail records and other technical phone data would only reveal what phone numbers were used to call Stevenson's identified numbers, but not the contents of the communications.

Stevenson argues that Camilleri's statements in the warrant affidavit - that Stevenson was involved in transporting illegal firearms into New Jersey - were false because they were based solely on the fact that Castro sold a gun to Deaney after Stevenson...