June 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
ROHAN AVANS, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 97-11-1524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 5, 2007
Before Judges Coburn and Axelrad.
Tried to a jury, defendant Rohan Avans was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one) and first-degree possession with intent to distribute cocaine, in a quantity of five ounces or more, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two). The court sentenced defendant to a four-year term on count one and a concurrent fifteen-year term on count two. The appropriate mandatory applicable fines and assessments were also imposed.
On appeal, defendant argues:
THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO APPEAR FOR TRIAL BY CONTINUING TRIAL WITHOUT HIM ON THE THIRD DAY (PLAIN ERROR).
A. A DEFENDANT HAS A FUNDAMENTAL CONSTITUTIONAL RIGHT TO BE PRESENT FOR EVERY STAGE OF TRIAL.
B. TRIAL CANNOT PROCEED WITHOUT THE DEFENDANT UNLESS HE HAS WAIVED HIS RIGHT TO APPEAR.
C. THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO APPEAR BECAUSE IT PROCEEDED IN ABSENTIA WITHOUT EVER FINDING THAT DEFENDANT HAD EITHER EXPRESSLY OR IMPLIEDLY WAIVED HIS RIGHT, AND THE RECORD BELOW DIDN'T SUPPORT EITHER FINDING.
THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DETECTIVE DIXON TO TESTIFY AS THE STATE'S EXPERT WITNESS (PLAIN ERROR).
A. EXPERT TESTIMONY IS PERMISSIBLE IN AN INTENT TO DISTRIBUTE DRUGS CASE WHERE THE AVERAGE JUROR NEEDS HELP UNDERSTANDING THE INTENT ISSUE.
B. DIXON'S EXPERT TESTIMONY WAS IMPROPER BECAUSE (1) THE JURY DIDN'T NEED HELP UNDERSTANDING INTENT AND (2) THE TESTIMONY GAVE EXPERT APPROVAL TO THE STATE'S CONSTRUCTIVE POSSESSION CHARGE, IMPROPERLY TILTING THE JURY'S DELIBERATIONS IN THE STATE'S FAVOR.
THE TRIAL COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BY FAILING TO CHARGE THE JURY THAT A DEFENDANT MUST KNOW THE QUANTITY OF DRUGS POSSESSED (PLAIN ERROR).
DEFENDANT'S SENTENCE IS IMPROPER AND UNJUSTIFIED.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (PLAIN ERROR).
In a cross-appeal, the State asserts error by the court in failing to impose a mandatory one-third to one-half period of parole ineligibility on the count two conviction pursuant to N.J.S.A. 2C:35-5b(1).
We are not persuaded by any of defendant's challenges to his conviction or sentence and affirm on the appeal. On the cross-appeal, we remand for re-sentencing on count two with imposition of a mandatory period of parole ineligibility to be determined by the court in the remand proceeding.
Defendant was present the first two days of trial, December 15 and 17, 1998, during which the State presented its case in chief. The testimony presented by State Trooper Mark Wondrack was that defendant was driving a rental car on the New Jersey Turnpike in Edison Township when he was stopped for speeding. Defendant produced a Virginia driver's license and Virginia car rental agreement. As defendant was removing the rental agreement from the glove compartment, the trooper saw what he believed to be a chrome-colored pocket knife. Defendant informed him the object was a tool, and upon further inspection, it was determined to be a torque wrench set used to open star-shaped headed screws. After speaking with defendant and his passenger, co-defendant Richard Williams,*fn1 the trooper became suspicious, and obtained defendant's consent to search the vehicle. Using the torque wrench, the officer opened the driver's-side panel, where he found a package containing 378 grams (about thirteen and a half ounces) of cocaine.
Lieutenant Ronald Dixon of the Middlesex County Prosecutor's Office was qualified as an expert in the area of narcotics investigation and distribution. He testified that rental cars were commonly used to transport drugs because of their mechanical reliability, and so the drug dealer could avoid forfeiture of his own vehicle. He further opined that drug dealers with an expensive cargo usually traveled with a companion to remain with the car if mechanical trouble should occur. He further testified as to the street value of the drugs and opined that 378 grams worth of secreted cocaine in a vehicle would have been possessed with an intent to distribute.
Defendant did not appear on the third day of trial, Tuesday, December 22, 1998. His girlfriend presented a hospital note stating he had been treated for an asthma attack on December 20, and he should return to work or school in four days. She informed the court that defendant was at home. Defense counsel telephoned his client from court and he represented to the court that defendant did not wish to testify. The court denied the State's application for an adjournment to investigate defendant's claim of illness, which was not joined by defense counsel. The judge informed the jury that defendant was absent because he apparently was temporarily ill and that no negative inferences were to be drawn from his absence. Defendant's girlfriend then testified, and summations were given and the judge charged the jury. Defendant was convicted, with the jury specifically finding that the quantity of cocaine was greater than five ounces.
Defendant waived his right to be present at trial when he failed to appear on the third day of trial. R. 3:16(b). Defendant did not convey to his attorney that his illness prevented him from appearing in court, nor did he request that his counsel seek an adjournment of the trial so he could be present through its conclusion. In fact, when the State requested an adjournment to investigate defendant's claim of illness, defense counsel did not join in the request. Moreover, defendant must prove that the continuation of the trial during his absence was clearly capable of causing an unjust result. R. 2:10-2. Defendant failed to meet this burden. When defense counsel called him from court on the third day, defendant expressly informed him that he did not wish to testify. Defendant was present to assist in the cross-examination of the State's witnesses, and the only witnesses to testify after his absence was his own girlfriend. Moreover, the jury was clearly instructed that defendant's absence was due to a temporary illness and that no negative inferences were to be drawn therefrom.
Moreover, defendant did not request a new trial pursuant to Rule 3:20-2 on the grounds that his absence from trial was not voluntary when he appeared for sentencing six years later. Failure to move for a new trial on this ground and to prove that his absence was justified constitutes a second waiver of the right to be present at trial pursuant to Rule 3:16(b). State v. Finklea, 147 N.J. 211, 221 (1996), cert. denied, 522 U.S. 837, 118 S.Ct. 110, 139 L.Ed. 2d 63 (1997).
As to defendant's second argument, we discern no abuse of discretion, let alone plain error, in the trial court's permitting Lieutenant Dixon to testify as an expert in narcotics investigation and distribution. A trial judge's determination that an expert's testimony will assist the jurors in understanding the evidence or determining a fact in issue should be granted due deference by this court. State v. Summers, 176 N.J. 306, 312-13 (2003). We are satisfied it was not common knowledge that thirteen and one-half ounces of cocaine were a large quantity of drugs and that the expert's testimony was necessary to establish its worth and to provide information as to other factors establishing an intent to distribute that were beyond the ken of laypersons. See State v. Nesbitt, 185 N.J. 504, 514 (2006). Moreover, the State's expert appropriately responded to the hypothetical with limited testimony that did not in any way invade the jury's factfinding role or violate defendant's right to a fair trial. See State v. Odom, 116 N.J. 65, 81 (1989); State v. Summers, supra, 176 N.J. at 314-15. The trial court further assured that defendant received a fair trial when, in accordance with State v. Torres, 183 N.J. 554, 580 (2005), he instructed the jurors that they were to scrutinize the factual basis of Lieutenant Dixon's expert opinion and could reject it partly or entirely.
Defendant's challenge to the jury instruction is also without merit. R. 2:11-3(e)(2). Defendant's knowledge of the amount of cocaine possessed is not an element of N.J.S.A. 2C:35-5. The trial judge instructed the jurors in accordance with the Model Jury Charges that the State need not prove defendant's knowledge of the quantity of the drugs that he knowingly possessed and that once they found defendant guilty of possession with intent to distribute, they had to determine the amount of cocaine possessed beyond a reasonable doubt to determine the gradation of the conviction. Model Jury Charge (Criminal), Supplemental Charge to Offenses Set Forth in N.J.S.A. 2C:35-5 (Feb. 3, 1992); N.J.S.A. 2C:35-5a; see also State v. Florez, 134 N.J. 570, 595 (1994) (the trier of fact has to determine beyond a reasonable doubt the quantity of the cocaine involved for grading purposes); State v. Torres, 236 N.J. Super. 6, 13 (App. Div. 1989) (the quantity of the drug possessed is not an element of N.J.S.A. 2C:35-5, but rather is material to the gradation of the conviction), certif. denied, 122 N.J. 153 (1990).
Defendant argues the sentence was improper because the court failed to articulate facts supporting each aggravating factor. We perceive no error in the sentence imposed. The court clearly articulated the reasons for finding aggravating factors three, six, nine, and eleven, and no mitigating factors. Other than the required remand for the imposition of a mandatory period of parole ineligibility pursuant to N.J.S.A. 2C:35-5b(1) on the fifteen-year sentence imposed on count two (possession with intent to distribute more than five ounces of cocaine), the court properly followed and applied the sentencing guidelines and criteria, imposing sentences in the mid-point range of the guidelines on defendant's first- and third-degree convictions; the sentences imposed are not manifestly excessive; nor do they shock our judicial conscience. See State v. Ghertler, ll4 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).
In his final argument, defendant contends his trial counsel was ineffective for failing to make a motion to suppress evidence found in the rental car. We will not address this claim on direct appeal. Ineffective assistance of counsel claims, generally, are more appropriately raised in a collateral proceeding "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, l29 N.J. 451, 460 (1992). Our affirmance of defendant's conviction is without prejudice to any post-conviction relief (PCR) petition he may timely pursue on the basis of ineffective assistance of trial counsel. State v. Sparano, 249 N.J. Super. 4ll, 419 (App. Div. l99l).
The conviction is affirmed. The sentence is affirmed with the exception of a remand for re-sentencing on count two with imposition of a mandatory period of parole ineligibility to be determined by the court in the remand proceeding.*fn2