June 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKFORD THOM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-07-2578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2007
Before Judges A. A. Rodríguez, Collester and Lyons.
Following a jury trial, defendant, Rickford Thom, was convicted of third degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(2); third degree possession of cocaine with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7; fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3); third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(11); third degree possession of marijuana with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7. Defendant moved unsuccessfully for a new trial. After appropriate merger of the offenses, the judge imposed pursuant to N.J.S.A. 2C:43-6f, governing persistent drug offenders, an extended ten-year term with a five-year parole disqualifier for the possession of cocaine with intent to distribute conviction. All other sentences were to run concurrent. We affirm the convictions, but vacate and remand the sentences.
The pertinent facts are as follows. The arrest stems from the March 28, 2003 execution of a search warrant*fn1 at the first floor apartment of a multi-family dwelling located on 16th Street in East Orange by officers from the East Orange Police Department and the Essex County Prosecutor's Office Narcotics Task Force. This dwelling is within 1,000 feet of Gordon Parks Academy.
Prior to trial, defendant moved to suppress his statement to police about where he lived. He also moved to disclose the identity of two confidential informants who assisted police in obtaining the search warrant. One informant was working with the Prosecutor's Office and the other with the East Orange Police Department. Defendant received discovery regarding the Prosecutor's informant, but not the East Orange informant. In addition, defendant sought an adjournment of the trial until all discovery regarding both confidential informants was provided.
The State opposed these requests asserting that the defense was on notice that there was a second confidential informant based on discovery already provided. Moreover, there were two controlled purchases, from someone other than defendant, conducted by the Prosecutor's informant and a similar controlled purchase conducted by the East Orange informant. Therefore, the State argued that it had enough information to obtain a search warrant, independent of the East Orange informant. The State did not plan on introducing at trial any information regarding the controlled purchases conducted by the East Orange informant.
The judge denied defendant's applications, finding that there was sufficient probable cause in the affidavit for the search warrant even without the paragraph regarding the East Orange informant. Therefore, defendant's right to file a motion to suppress was not prejudiced.
At trial, Essex County Prosecutor's Investigator Robert O'Neil, testified that he and several officers executed the search warrant at the 16th Street apartment. There was no answer at the door. The officers knocked on the window. There was no response. Detective John Hernandez opened the front door with a battering ram. O'Neil entered the apartment first, followed by Investigator Joseph DiLauri and other officers. In the meantime, Investigators Thomas Chung and Daniel Francis positioned themselves in the backyard of the dwelling in order to secure the rear perimeter. Chung saw defendant running towards the rear window. Chung announced to defendant, "Police, get on the ground." Defendant turned around and headed back towards the front of the apartment.
According to O'Neil, upon entering the apartment, he saw defendant come out of the rear bedroom and enter the living room. O'Neil and DiLauri ordered defendant to "get down to the ground." Defendant stood there and put his hands up. The officers handcuffed defendant and patted him down. Defendant was wearing a black backpack. Detective John Hernandez searched the backpack and found: 1) a paper bag containing eighty-nine baggies of marijuana; 2) a plastic bag with fifty "jugs" (red tinted glass vials) of cocaine; 3) a plastic bag with approximately seventy grams of marijuana; and 4) a bunch of plastic baggies and empty jugs. A search of defendant's person revealed $126 in his pocket.
At the time of the executed search warrant, defendant's two-year old son was present in the apartment. After the premises were secured, a woman arrived at the apartment and identified herself as the child's mother. The child was released to her.
Defendant was transported to the Essex County Narcotics Task Force office. The officers conducted a systematic search of the apartment. They found, in the closet of a rear bedroom, a black plastic bag with approximately twenty-one grams of cocaine. DiLauri found a trap in the closet floor, which contained a bag with ten jugs of cocaine. O'Neil found two shoeboxes containing cocaine, one with thirty-six jugs and another with forty-one jugs. Other officers found in the rear bedroom: letters bearing the names of Shaneeca Williams and James Florence; packing materials and currency in a dresser; as well as drug paraphernalia, including a digital scale, a glass pot with cocaine residue on it, a cell phone with a digital diary and a surveillance monitor (showing the front porch of the house) connected to a camera pointing out of the front window. Chung conducted field tests, which confirmed that the substances found were cocaine and marijuana.*fn2
At the Task Force's headquarters, defendant was given Miranda*fn3 warnings orally and in writing. Defendant stated that he resided at the 16th Street, first floor apartment.
At trial, Detective Reginald Holloway of the Essex County Sheriff's Department Bureau of Narcotics, testified as an expert in the field of street level trafficking of illicit narcotics. Holloway opined, based upon the amount of drugs and paraphernalia found and the manner in which they were packaged, that the amount of drugs and paraphernalia confiscated from defendant were possessed with the intent to distribute. With regard to the scale that was recovered from defendant's apartment, Holloway opined that, "the scale would be something, an item that would be utilized in the packaging, the weighing and packaging of the narcotics that are going to be distributed." With regard to the closed circuit camera system, Holloway opined that ordinarily he believes the camera would be present for security purposes. However, the camera system found in the context of the other evidence suggests that the camera was used "as a lookout for the individual . . . inside the location to make them aware of any  presence of law enforcement officers or  the competition."
Defendant presented only one witness, his mother, Leslie Thom. She stated that her son lived at 7th Street, not 16th Street. She acknowledged that she was not present during the execution of the search warrant and declared that she loved her son.
At the conclusion of the trial, the judge charged the jury that if it found that defendant attempted to flee; it might infer from the attempted flight a guilty state of mind. The judge declined to give the model charge on identification.
Defendant appeals contending:
THE JUDGE ERRED BY NOT GRANTING DEFENSE COUNSEL'S MOTION TO SUPPRESS [DEFENDANT'S] STATEMENT ABOUT WHERE HE LIVED, THEREBY VIOLATING HIS FIFTH AMENDMENT RIGHT TO SILENCE.
We note that defendant told police officers that he lived at the 16th Street address, after receiving the Miranda warnings. Therefore, there is no basis for suppressing this statement. Moreover, "[r]outine questions asked during the booking process . . . are generally held to be ministerial in nature and outside the privilege against self-incrimination." State v. Cunningham, 153 N.J. Super. 350, 352 (App. Div. 1977); State v. Bohuk, 269 N.J. Super. 581, 593 (App. Div.), certif. denied, 136 N.J. 29 (1994), cert. denied, 513 U.S. 865, 115 S.Ct. 183, 130 L.Ed. 2d 117 (1994); State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div.), certif. denied, 126 N.J. 331 (1991).
Defendant also contends that:
DURING HER SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED [DEFENDANT] OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE FOURTEENTH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Partially Raised Below).
We are not persuaded.
Defendant objects to the following comments made by the Assistant Prosecutor on her summation:
[Defendant is] in the wrong place at the wrong time, that's what Mr. Rosen told you in his opening. He told you that the defendant was here because he was in the wrong place at the wrong time. Well, I submit that the defendant is here because he was doing the wrong thing and he got caught doing it.
Now, if you think about it for a moment it makes perfect sense. Investigator O'Neil told you about the surveillance equipment. He told you that that equipment was hooked up, it was connected . . . . So either two things happen, either one of two things happened, excuse me, either the defendant looked at that monitor and he saw the police outside or he heard them when they were out front. And he knew that the only way for him to escape would be through the back.
But what he didn't know was whether or not the police had surrounded the location.
Now, we also heard from defendant's mother.
What is it we learned from the defendant's mother? Nothing. We learned absolutely nothing from the defendant's mother. We know she wasn't there at the time of the defendant's arrest or the execution of the search warrant. But we do know that she loves her son.
But rather than focus on all of this [various types of evidence, defense counsel] is focusing on the fingerprints. Ladies and gentlemen, this is Essex County, it's not C.S.I.
[Defendant] had to make a decision in a moment's notice. Certainly we know he didn't have time to tend to his son, because when he walked toward Investigator O'Neil he wasn't holding his son. But what was he holding? This backpack. He was holding this backpack with the seventy one grams of marijuana, the eighty nine zip lock bags of marijuana, the fifty jugs of cocaine. And this bag of empty jugs. This is what he was holding. He was holding what was near and dear to him, not his two year old son.
With the exception of the last comment regarding defendant attempting to abandon his son in order to escape, we conclude that the prosecutorial comments are proper argument on the evidence. The comments did not deprive defendant of a fair trial.
We note that defendant failed to object to the first four comments. The Supreme Court held in State v. Taylor, 46 N.J. 316, cert. denied, 385 U.S. 855, 87 S.Ct. 103, 17 L.Ed. 2d 83 (1966), that "an appellate court, limited in its review to the printed record, may infer from counsel's failure to object to the remarks at the time they were made that he did not in the atmosphere of the trial think them out of bounds." Id. at 335 (quoting State v. Johnson, 31 N.J. 489, 511 (1960)) (internal citations omitted); State v. R.B., 183 N.J. 308 (2005); State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005). Moreover, "[o]rdinarily a defendant will not be heard to claim prejudice if defense counsel does not interpose a timely and proper objection to the improper remarks . . . by the prosecutor. . . ." State v. Bogen, 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S.Ct. 44, 98 L.Ed. 2d 350 (1953); State v. Wakefield, ___ N.J. ___ (2007); State v. Daniels, 182 N.J. 80, 96-97 (2004). A timely objection gives the trial judge the opportunity to reduce the impact of such remarks, but "the onus is upon the lawyer to safeguard his client from such conduct. . . ." State v. Bucanis, 26 N.J. 45, 57, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958); Wakefield, supra, ___ N.J. at ___.
We cannot look to isolated points of counsel's closing remarks when judging the propriety of the statement made, but must consider the prosecutor's summation as a whole. State v. Carter, 91 N.J. 86, 107 (1982); State v. Hill, 365 N.J. Super. 463, 469 (2004), rev'd on other grounds, 182 N.J. 532 (2005). As long as prosecutors stay within the evidence and legitimate inferences that can be drawn therefrom, they are entitled "to make vigorous and forceful closing arguments to juries." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Nelson, 173 N.J. 417, 472 (2002); see State v. Lynch, 177 N.J. Super. 107, 115-116 (App. Div.), certif. denied, 83 N.J. 347 (1981) (finding that the prosecutor's comments on summation which displayed excessive zeal was harmless in light of the overwhelming evidence of defendant's guilt). Hence, prosecutors are entitled to wide latitude in summation so long as comments are within the evidence and legitimate inferences therein.
R.B., supra, 183 N.J. at 330 (citing State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969)); State v. Ebron, 122 N.J. Super. 552 (App. Div.), certif. denied, 62 N.J. 250 (1973).
It is unreasonable to expect that criminal trials will be conducted without some show of feeling. Defense attorneys "traditionally make dramatic appeals to the emotions of a jury" and, accordingly, "prosecutor[s] cannot be expected to present the State's case in a manner appropriate to a lecture hall." State v. Johnson, supra, 31 N.J. at 510-11. In State v. Bucanis, supra, 26 N.J. at 56, the Court noted that "[t]he charged atmosphere created [by a criminal trial] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety." Id. at 56; Wakefield, supra, ___ N.J. at ___; State v. Marks, 201 N.J. Super. 514, 535 (1985), certif. denied, 102 N.J. 393 (1986); State v. Ramseur, 106 N.J. 123, 320 (1987).
With respect to the comment about defendant abandoning his son, we conclude that it was improper. Nonetheless, it does not warrant reversal, which is justified only if the allegedly improper comments made by the prosecution in summation deprived the defendant of a fair trial. Thus, before reversal ensues the prosecutor's infraction must be clear and unmistakable and must substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense. [Bucanis, supra, 26 N.J. at 56; State v. Blanks, 190 N.J. Super. 269, 279 (App. Div. 1983).]
Defendant also contends:
THE TRIAL COURT COMMITTED ERROR BY INSTRUCTING THE JURY ON FLIGHT (Partially Raised Below).
We disagree. Flight of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt. State v. Williams, 190 N.J. 114, 125-26 (2007); State v. Johnson, 216 N.J. Super. 588, 612 (App. Div.), certif. denied, 107 N.J. 647 (1987). Flight requires departure from a crime scene under circumstances that imply consciousness of guilt. State v. Sullivan, 43 N.J. 209, 238 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed. 2d 477 (1966); State v. Horne, 376 N.J. Super. 201, 213 (App. Div.), certif. denied, 185 N.J. 264 (2005). "[A]ttempted-flight evidence is admissible. . . ." State v. Mann, 132 N.J. 410, 420 (1993).
Here, there was evidence from which the jury could conclude that defendant attempted to flee from the police. This, in turn, gives rise to an inference of defendant's consciousness of guilt. Hence, the charge on flight was appropriate.
Defendant also challenges his sentence contending:
THE EXTENDED TERM SENTENCE IMPOSED BY [THE TRIAL JUDGE] WAS AN ABUSE OF DISCRETION AND WAS UNDULY EXCESSIVE.
We note that, defendant was twenty-seven years old at the time of sentence. He had a history of three disorderly persons and two indictable convictions. One of these convictions was for third degree possession of a CDS with intent to distribute. The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from law. The judge found that none of the mitigating factors listed in N.J.S.A. 2C:44-1b applied.
We make no decision regarding the claim of excessiveness because it is clear that the length of the base terms must be remanded pursuant to State v. Natale, 184 N.J. 458 (2005). In Natale, the Supreme Court held that, "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction violates defendant's Sixth Amendment jury trial guarantee." Id. at 466. The Code of Criminal Justice's presumptive terms were eliminated. Ibid. The Court directed that henceforth, judges will sentence defendants within the statutory range for the offense after weighing the aggravating and mitigating factors. Ibid. Therefore, there must be a re-sentencing hearing as to the length of the terms because defendant's appeal was pending when Natale was decided on August 2, 2005. Hence, defendant is entitled to "pipeline retroactivity." State v. Colbert, 190 N.J. 14, 26 (2007); Natale, supra, 184 N.J. at 494; State v. Cummings, 184 N.J. 84, 99 (2005). However, we affirm the imposition of an extended term pursuant to the persistent drug offender provision of N.J.S.A. 2C:43-6f. This is a mandatory parole disqualifier, which does not violate the Sixth Amendment.
The remaining contentions are:
THE TRIAL COURT COMMITTED ERROR BY FAILING TO CHARGE THE MODEL JURY CHARGE ON IDENTIFICATION, THEREBY DENYING [DEFENDANT] HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANT'S IDENTITY WAS AN ABUSE OF DISCRETION WHICH RESULTED IN A DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS.
THE COURT COMMITTED ERROR IN DENYING DEFENDANT'S MOTION TO ADJOURN THE MATTER UNTIL HE RECEIVED ALL DISCOVERY REGARDING ANY AND ALL CONFIDENTIAL INFORMANTS, THEREBY DENYING DEFENDANT DUE PROCESS OF LAW.
THE TRIAL COURT ERRED IN ALLOWING THE EXPERT TO TESTIFY AND ANSWER HYPOTHETICAL QUESTIONS BECAUSE THE TESTIMONY DID NOT ASSIST THE JURY IN UNDERSTANDING THE FACTS AND WAS UNDULY PREJUDICAL.
THE TRIAL COURT ERRED IN ALLOWING THE JURY TO HEAR IRRELEVANT AND PREJUDICAL EVIDENCE REGARDING THE LETTERS ADDRESSED TO THE SUBJECT PREMISES, THEREBY DENYING [DEFENDANT] HIS RIGHT TO A FAIR TRIAL.
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
THE TRIAL COURT COMMITTED ERROR IN DENYING [DEFENDANT'S] MOTION TO SET ASIDE THE JURY'S VERDICT.
Based on our careful reading of the record, we conclude that these arguments are clearly without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We merely note the following. With respect to the confidential informant, as set forth in N.J.S.A. 2A:84A-28 and N.J.R.E. 516, [a] witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that[,] (a) the identity of the person furnishing the information has already been otherwise disclosed or[,] (b) disclosure of his identity is essential to assure a fair determination of the issues.
Therefore, "[u]nder most circumstances . . . an informer's identity will be kept secret and will not be revealed for insignificant or transient reasons." State v. Foreshaw, 245 N.J. Super. 166, 181 (App. Div.), certif. denied, 126 N.J. 327 (1991). Here, defendant has not made a showing that disclosure of the informants' names is essential to a fair trial.
With respect to expert testimony regarding the possession, sale and distribution of illicit narcotics, our Supreme Court has recognized that jurors in general are totally unfamiliar with the techniques used by street level drug dealers. State v. Summers, 176 N.J. 306, 312 (2003); State v. Berry, 140 N.J. 280, 302 (1995). In short, the nature and purpose of the possession of illicit narcotics is a subject within the specialized knowledge of experts and not something generally known by persons of ordinary understanding. State v. Nesbitt, 185 N.J. 504, 507 (2006); State v. Odom, 116 N.J. 65, 73 (1989). Thus, where a case involves: recondite questions concerning the significance of the acts shown, including the manner in which the drugs were packaged, the relationship between drugs and money, the presence or absence of drug paraphernalia, the use of confederates, and other such issues, a jury may well need the assistance of expert testimony to resolve the issues and decide the ultimate factual question whether distribution was intended or not. [State v. Cordero, 293 N.J. Super. 438, 442 (App. Div. 1996), certif. denied, 47 N.J. 577 (1997).]
In summary, the convictions are affirmed, the custodial terms are vacated and the matter is remanded to the Law Division, Essex County for re-sentencing. We do not retain jurisdiction.