On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-11-2445.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C.S. Fisher and Grall.
In this appeal, defendant contends, among other things, that the trial judge erred by denying his motion for a new trial or, in the alternative, by failing to conduct a hearing into a juror's concerns about the jury's deliberations first expressed by this juror in a post-verdict communication with the prosecutor's office. Because we agree that the trial judge should not have explored the juror's concerns through his own ex parte, unrecorded discussions, we remand for further proceedings.
Defendant was indicted and charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35- 5(b)(3); fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5); and third-degree resisting arrest by using or threatening to use physical force or violence, N.J.S.A. 2C:29-2(a)(1). Following a two-day trial, defendant was convicted of all these charges except aggravated assault. The trial judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f), and, after merging the CDS convictions, the trial judge imposed a ten-year term of imprisonment, with a five-year period of parole ineligibility. The judge also sentenced defendant to a concurrent eighteen-month term of imprisonment on the resisting arrest conviction. Mandatory penalties and assessments were imposed, including a suspension of defendant's driving privileges for six months.
On appeal, defendant has raised the following arguments for our consideration:
I. THE COURT BELOW ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL OR, ALTERNATIVELY, FOR FAILING TO CONDUCT A POST-CONVICTION INTERVIEW OF A JUROR.
II. THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.
III. THE COURT BELOW VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
IV. THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ANY MITIGATING FACTORS.
We find that the arguments contained in Points III and IV are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). For the reasons that follow, we reject defendant's argument that the trial judge should have granted a mistrial due to the admission of certain testimony provided by Detective Donna Green, as asserted in Point II, but we remand for further proceedings regarding the post-trial communications with a juror, as argued in Point I.
In arguing that the trial judge should have granted a mistrial, defendant complains that the judge erroneously permitted, over his objection, Detective Donna Green -- a fact witness who had taken the alleged narcotics to the State lab for testing -- to render an expert opinion on whether the bagging of the alleged narcotics was consistent with an intent to distribute instead of mere possession.
The record reveals, however, that after the assistant prosecutor asked Detective Green about the physical appearance of the drugs and how they were bagged, the assistant prosecutor also asked whether "this [is] kind of consistent with somebody who would have drugs for distribution," to which Detective Green replied, "yes." As that answer was given defense counsel objected, and, immediately following that objection, the following occurred at sidebar:
[DEFENSE COUNSEL]: There's no expert report, there's none of that. I told [the assistant prosecutor] that I would stipulate to the lab report.
[ASSISTANT PROSECUTOR]: I need her to get in the lab report, that the lab -- that there is a lab report. I have to introduce it.
[DEFENSE COUNSEL]: I stipulated to it. I don't know why he called Ms. Green, perhaps it ...