July 3, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES RANDOLPH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1187.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2007
Before Judges Kestin, Payne and Lihotz.
Defendant, James Randolph, was charged with and convicted by a jury of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One -- cocaine; Count Four -- heroin); third-degree possession of CDS with the intent to distribute it, N.J.S.A. 2C:35-5a(1) (Count Two -- cocaine; Count Five -- heroin); and third-degree possession of CDS with the intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three -- cocaine; Count Six -- heroin). Following merger, for purposes of sentencing, of the possession and distribution offenses into the two school zone offenses, defendant was sentenced, pursuant to N.J.S.A. 2C:44-6(f), to two concurrent extended six-year terms of imprisonment with three years of parole ineligibility on each. Defendant has appealed from his conviction and sentence.
On appeal, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S AMBIGUOUS, CONFUSING, INCOMPLETE, AND PREJUDICIAL INSTRUCTION ON THE LAW OF REASONABLE DOUBT.
THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
A. THE TRIAL COURT IMPROPERLY EXCLUDED VITAL CROSS-EXAMINATION CONCERNING THE BIAS, PREJUDICE, AND INTEREST OF THE STATE'S EXPERT WITNESS.
B. THE DEFENDANT WAS IMPLICATED IN THE COMMISSION OF THE CRIMES BY UNKNOWN SOURCES AND ABSENTEE WITNESSES. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE EXPERT'S CONCLUSION THAT THE DEFENDANT HAD POSSESSED CDS WITH THE INTENT TO DISTRIBUTE. (Not Raised Below.)
THE WARRANTLESS SEARCH AND SEIZURE VIOLATED THE DEFENDANT'S RIGHTS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 7 OF THE NEW JERSEY CONSTITUTION.
A. THE POLICE LACKED PROBABLE CAUSE TO CONDUCT A WARRANTLESS SEARCH OF THE DEFENDANT'S PREMISES.
B. THE POLICE DID NOT HAVE A PERMISSIBLE VANTAGE POINT TO JUSTIFY A PLAIN VIEW SEIZURE OF THE EVIDENCE.
C. THE DEFENDANT DID NOT ABANDON HIS PRIVACY EXPECTATIONS MERELY BY DROPPING A PACKAGE IN HIS OWN PREMISES.
D. THE POLICE CONDUCTED AN UNLAWFUL WARRANTLESS SEARCH OF PACKAGES SEIZED FROM THE DEFENDANT'S RESIDENCE.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT. (Not Raised Below.)
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
C. THE TRIAL COURT IMPROPERLY RELIED ON PRESUMPTIVE EXTENDED TERM SENTENCING GUIDELINES.
Prior to trial, defendant moved to suppress the drug evidence seized by the police at or around the time of his arrest. Testimony at the suppression hearing disclosed that the police, responding to a citizen's report of drug activity centered around the building where defendant resided, walked up the steps of the building, whereupon they observed defendant on the porch with objects in his hands. At the sight of the police, defendant dropped two newspaper-wrapped bricks of what the police believed to be heroin and fled into the building, where he was apprehended in his own second-floor apartment.
Additional drugs were found on defendant's person pursuant to a search incident to arrest, along with $25 in cash. Trial testimony essentially conformed to that presented at the suppression hearing.
On appeal, defendant challenges the constitutionality of the police's warrantless drug seizures, claiming that the motion judge erred in finding that they met any of the exceptions to the Fourth Amendment's warrant requirements. We reject defendant's arguments, finding that the initial seizure of the two bricks of heroin was justified by the plain-view exception to the warrant requirement and by defendant's abandonment of the drugs prior to his flight. The seizure of the cocaine, found on defendant's person, was the lawful result of a search incident to arrest.
In order to demonstrate that the contraband was properly seized pursuant to the plain view exception to the warrant requirement, the State was required to prove that the officer conducting the seizure was in an area where he was lawfully entitled to be, that his discovery of the evidence was inadvertent, and that the nature of the items as contraband was immediately apparent to him. State v. Johnson, 171 N.J. 192, 206-07 (2002). The requirement that it be "immediately apparent" to the officer that the item in question was contraband has been interpreted broadly to require only that the officer have probable cause to believe the item is associated with criminal activity. Id. at 207.
At the suppression hearing, testimony was given by Newark Police Detective Michael Chirrico, who testified that he and his partner, Detective Michael Lalley, responding to a report of drug activity at 7-9 Howell Place, approached the address on foot. Seeing defendant, visible through the windows of the porch, they "walked up onto the steps and onto the porch" to question him. When approximately three feet from defendant, and while still on the steps, Chirrico observed that defendant had something in his hands. Defendant dropped the objects and fled inside, shutting the door behind him. Chirrico, an experienced narcotics officer, was immediately able to recognize the objects that were dropped as resembling newspaper-wrapped bricks containing drugs. Pursuit, and the arrest of defendant in his second-floor apartment, followed.
In the circumstances described, we find no constitutional infirmity arising from the police's approach to defendant while he stood in plain view on the porch of the building in which he resided, State v. Alexander, 170 N.J. Super. 298, 302-04 (Law Div. 1979), aff'd o.b., 173 N.J. Super. 260 (App. Div. 1980), or from the police's observation of defendant within that enclosure. Id. at 304. Further, in this case, the porch constituted the entry to a multi-family residence. A police officer may approach and even enter such a common area without infringing upon a defendant's Fourth Amendment rights. Johnson, supra, 171 N.J. at 209; State v. Ball, 219 N.J. Super. 501, 506-07 (App. Div. 1987). As a consequence, there is no question that the officers were in an area where they were entitled to be. The conduct in which the officers engaged simply did not constitute a search. Johnson, supra, 171 N.J. at 210.
That the discovery of the drugs was inadvertent is also clear. Id. at 211-13. Although the citizen informant had reported drug activity at the location, the informant did not detail the nature of that activity, specify its precise location in relationship to the building, or identify the participants in the activity. Nor did the police have prior knowledge of defendant or his activities. For all they knew, defendant's conduct at the time of their approach was wholly innocent in nature.
The State, likewise, met the third prong of the plain-view exception to the warrant requirement through the testimony of Detective Chirrico that he recognized the packaged heroin for what it was immediately after defendant dropped it to the ground. Although the newspaper wrapping may have obscured the drugs from immediate view, Detective Chirrico's knowledge that heroin is commonly packaged in this fashion, combined with the citizen's report of drug-related activity at the site and defendant's suspicious conduct in dropping the packages, provided probable cause for Chirrico to associate the items with criminal activity. Id. at 213-16. See also Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed. 2d 502 (1983). No precedent precluded the police from verifying their suspicions regarding the content of the packages, once they had probable cause to seize them.
Alternatively, we agree with the State that defendant abandoned the drugs in question, having thrown them to the ground before fleeing and slamming the door, and before any action on the part of the police could be deemed a seizure or attempted seizure of his person. State v. Carroll, 386 N.J. Super. 143, 161 (App. Div. 2006); State v. Farinich, 179 N.J. Super. 1, 6-7 (App. Div 1981), aff'd, 89 N.J. 378 (1982). Compare State v. Tucker, 136 N.J. 158, 166 (1994) (where police actions would cause a reasonable person to believe that the police wanted to capture him and not just to speak with him, a seizure of the person has occurred rendering inadmissible any object thrown by the defendant, if the seizure was effected without probable cause).
Defendant does not directly argue that the police's subsequent pursuit, apprehension, and search were invalid, assuming such a result to flow from the purported invalidity of the initial seizure of the heroin. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 455 (1963). Having found that initial seizure to have been valid, any argument of this sort would be unavailing. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1973); United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed. 2d 300, 305 (1976).
Defendant makes additional arguments regarding the testimony of the State's trial witnesses, claiming that he was denied his constitutional right to confrontation as the result of Detective Chirrico's testimony allegedly implicating him on the basis of information supplied by non-testifying informants. Defendant also challenges the testimony of the State's narcotics expert, Detective Reginald Holloway, arguing that his cross-examination of that expert with respect to his pro-prosecution bias was erroneously foreclosed, and that the detective impermissibly offered an opinion as to defendant's guilt. We find no factual or legal basis for these arguments.
At trial, Detective Chirrico explained his presence at the site of defendant's arrest by stating "we had received information about complaints coming out of residen[ts] up there around the residence of drug complaints." He then specified that the residence in question was number 7-9, and stated that when he and Detective Lalley, dressed in plain clothes, walked to the location, he saw an individual on the porch who was later identified as defendant.
Defendant argues that the trial court instructed the jurors that they could base their verdict on the evidence and reasonable inferences drawn from that evidence, and "[c]ertainly, one reasonable inference is that the defendant intended to distribute CDS based on these complaints. There was simply no need for the police to testify about complaints from unknown sources about drug dealing from the defendant's residence." In support of his position, defendant relies upon the Supreme Court's decision State v. Bankston, 63 N.J. 263 (1973), in which the Court held that the introduction of testimony by the police suggesting that they were looking for a person identified as a dealer in narcotics, whose clothes and location had been described by a confidential informant, and that the informant's statements had led the police to defendant, id. at 265-66, deprived defendant of his right of cross-examination. The Court stated:
It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received."
Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. [Id. at 268 (citations omitted).]
In the present case, the tip regarding drug-related activity at the location was related by Detective Chirrico to the jury as the explanation for the police's interest in that location, but no specific information was conveyed on direct examination regarding the participants in the activity or any other matter. Recently, the Supreme Court observed, after discussing Bankston and cases following it, that "[t]he common thread that runs" through the decisions "is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005).
Arguably, the rather meager testimony of Detective Chirrico lacked sufficient detail to violate Bankston's proscriptions, as interpreted in Branch. However, even if a Bankston violation took place, we note that no objection to it was interposed at trial, and thus any error in the introduction of the testimony must be judged by the plain-error standard of whether there is a reasonable doubt that the jury would have reached a different determination if the testimony had been excluded. Branch, supra, 182 N.J. at 353. Given the strength of the other evidence against defendant on the charge of possession, comprised of the newspaper-wrapped bricks, and on the charge of distribution, comprised of the quantity of drugs present and their packaging, we answer this question in the negative.
Moreover, we note that immediately upon commencing his cross-examination of Detective Chirrico, defense counsel himself referred to the information allegedly given by the informant, stating: "You indicated that you received information that drugs were being sold out of 7-9 Howell Place, correct?" Later, during the course of his cross-examination, counsel, in an attempt to impeach Detective Chirrico's credibility, asked him to read to the jury a portion of his grand jury testimony in which Chirrico said that he "obtained information from the Command that this location there was selling drugs from off the front porch of the area and back of the residence." Except in the most extreme cases, an alleged trial error originating with the defense will not present grounds for reversal on appeal. State v. Berry, 140 N.J. 280, 302-03 (1995). Although the alleged error did not originate with defense counsel, his repetition of the statement at issue on two occasions undermines defendant's claim that admission of the statement was plain error.
Defendant argues additionally that he was deprived of his right to conduct a full cross-examination of the State's narcotics expert, Detective Holloway, when he was precluded from determining whether the detective had ever offered his services to the defense. That he had not was abundantly clear from disclosure of the detective's employment by the Essex County Sheriff's Office, the detective's admission that he had frequently appeared for the State as an expert, and his statement that on those rare occasions when testimony for the defense was requested, his appearance had to be secured by use of a subpoena. The bias argument that defense counsel sought to convey required no more elaboration.
The right to cross-examination does not confer upon a defendant "license to roam at will under the guise of impeaching the witness. The trial judge has broad discretion to determine the proper limits of cross-examination of a witness whose credibility is in issue." State v. Sanchez, 224 N.J. Super. 231, 251 (App. Div.), certif. denied, 111 N.J. 653 (1988). Where the trial court determines that the introduction of remotely relevant testimony may result in an undue waste of time or needless presentation of cumulative evidence, it is within the trial court's discretion to bar that evidence. N.J.R.E. 403; Tonsberg v. VIP Coach Lines, Inc., 216 N.J. Super. 522, 530-31 (App. Div. 1987). We discern no misapplication of discretion in this connection. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).
Finally, defendant contends that Detective Holloway impermissibly gave an opinion with respect to defendant's guilt. We disagree.
Detective Holloway's testimony, given in response to a hypothetical question that utilized the underlying facts of the matter being tried, largely concerned the quantity of narcotics mentioned in the hypothetical, their packaging, and Holloway's opinion as to what inferences should likely be drawn from those facts. The thrust of Holloway's testimony, essentially, was that someone possessing 100 packets of heroin and 20 vials of cocaine most likely intended to distribute the narcotics for monetary gain. When summing up the testimony presented by the police officers, the prosecutor capped his argument by asserting that Holloway's testimony satisfied the State's burden of showing that defendant possessed the narcotics with the intent to distribute them. Detective Holloway did not give so specific an opinion.
N.J.R.E. 702 permits expert testimony where such testimony will assist the jury in understanding the evidence or determining a fact in issue. The Supreme Court has long held that expert testimony in drug cases is generally to be admitted, provided the trial court is satisfied that such testimony will assist the jury in resolving a material dispute of fact. Berry, supra, 149 N.J. at 301. An expert is not permitted to directly express the opinion that a defendant is guilty of the crime charged, State v. Odom, 116 N.J. 65, 77 (1989), but may express an opinion that "embraces an ultimate issue to be decided by the trier of fact." State v. Summers (Summers II), 176 N.J. 306, 312 (2003) (quoting N.J.R.E. 704).
Odom sets forth the standard practice to be employed when the State relies on an expert to express an opinion on the issue of an intent to distribute CDS, suggesting the use of a hypothetical adduced from the facts presented at trial and a query to the expert whether, in his opinion, the drugs described in that hypothetical were possessed for the purpose of distribution or personal consumption. Odom, supra, 116 N.J. at 80-82. In the present case, the prosecutor employed a mirror-image hypothetical when eliciting Detective Holloway's opinion. However, contrary to defendant's position, the use of such factually aligned hypotheticals has recently been re-endorsed in this connection. State v. Nesbitt, 185 N.J. 504, 511-12 (2006); Summers II, supra, 176 N.J. at 314-15. As the Court stated in Summers II:
Obviously, the expert must walk a fine line.
His or her opinion can be "expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute," [Odom, supra, 116 N.J.] at 81, but it cannot contain an explicit statement that "the defendant is guilty of the crime charged under the statute." Id. at 80. [Id. 176 N.J. at 314-15.]
Our review of the trial transcript satisfies us that Detective Holloway's testimony fell within the bounds that the Court has recognized as proper. No explicit statement of defendant's guilt was made by Holloway; it was argued only by the prosecutor.
During closing argument, the prosecutor, while recounting the testimony presented to the jurors, stated that defendant had only $25 on his person when arrested. He continued his argument by stating:
Whether or not the defendant had more money as the Detective, Holloway, testified as an expert witness, having a stash location is identified for C.D.S. and sometimes it's used for money. Whether or not the defendant had any other money around his area we'll never know. He had twenty-five dollars on him, twenty-five dollars and twenty vials of cocaine.
Although no objection to the statement was raised at the time, defendant now claims that it was improper, because it invited the jury to speculate that defendant had a large amount of currency, presumably the proceeds of his drug sales, stored in another location. Our review of the trial record suggests that the lack of objection arose, not from inattention, but from counsel's recognition that the prosecutor's argument merely responded to his own arguments regarding defendant's intent at the time of his arrest. In his summation, defense counsel had noted that, when arrested, defendant was found to possess one twenty- and one five-dollar bill. Because neither could be used to make change for the purchase of a ten-dollar bag of drugs, counsel argued at length that defendant's intent in possessing the drugs could not have been to sell them. Further, counsel argued:
So you have a twenty and five and I mean how much do you have in your pocket today? Does that amount coincide with the drugs that have been sold? If someone starts off with one hundred and two envelopes or twenty-two vials, the expert witness also talks about a stash and there wasn't a stash in this matter. So that's not something that can add to surrounding circumstances to prove anything. (Emphasis supplied.)
A prosecutor is permitted to respond to arguments made by defense counsel so long as the prosecutor's remarks are confined to the evidence. State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. denied, 177 N.J. 572 (2003). We perceive no more than such a justified response in the prosecutor's challenged statement.
We, also, find no reversible error to have occurred as the result of the trial judge's single slip of the tongue, during his instructions to the jury, when he misstated a portion of the definition of reasonable doubt by stating: "A reasonable doubt is an honest and unreasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence." (Emphasis supplied.)
It has long been held that an allegedly erroneous jury charge cannot be read in isolation, but must be examined in the context of the instruction as a whole to determine its overall effect. State v. Wilbely, 63 N.J. 420, 422 (1973). The concept has been held to be specifically applicable to the reasonable doubt charge, State v. Medina, 147 N.J. 43, 51-52 (1996), cert. denied sub nom., Medina v. New Jersey, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed. 2d 688 (1997), although it has also been held that "those instructions that overall lessen the State's burden of proof violate due process." Id. at 52.
Our review of the court's charges to the jury at the time the case commenced and at its close demonstrates an otherwise close adherence to the applicable charge set forth Model Criminal Jury Charge -- Reasonable Doubt (Rev. February 24, 1997) and the principles set forth there. We have no doubt, as a result, that the pivotal concept of reasonable doubt was completely and adequately explained to the jury, and that its verdict did not arise from a mistaken view as to the nature of the State's burden in this case. State v. Hudson, 286 N.J. Super. 149, 153 (App. Div. 1995). We thus find no reversible error to have occurred. Id. at 154.
The remainder of defendant's argument is not supported by the record. Defendant claims the reasonable doubt charge was incomplete but, as we have previously noted, it closely mirrored the model charge and the language of Medina. Further, we find no support for defendant's argument that Medina requires a judge to instruct the jury that a reasonable doubt is not the equivalent of an articulable doubt. Although the trial judge's expression of the equivalence of the two concepts formed the basis for appeal in that case, 147 N.J. at 52, and the Court disapproved of the language utilized, by doing so, the Court did not in any manner suggest that its disapproval should somehow be reflected in a jury instruction.
We conclude by addressing, and rejecting, defendant's argument that his concurrent extended-term sentences of six years with a three-year parole disqualifier were excessive.
Upon receipt of a properly supported motion by the State, imposition of an extended term is mandated by N.J.S.A. 2C:43-6f. And in this case, sufficient support existed as the result of the prosecutor's proof, on the record, of defendant's 1991 plea to charges of second-degree possession of CDS with the intent to distribute it, as amended to charge a crime of the third degree. Although that conviction was not particularly recent, N.J.S.A. 2c:43-6f does not set a chronological limit on prior convictions used as a foundation for an extended term. State v. Hill, 327 N.J. Super. 33, 40-41 (App. Div. 1999), certif. denied, 164 N.J. 188 (2000).
No evidence was presented by defendant that the prosecutor's decision to seek the extended term on the basis of the 1991 conviction was either arbitrary or capricious. State v. Lagares, 127 N.J. 20, 32-33 (1993). Guidelines established by the Attorney General permit prosecutorial waiver on the basis, among other factors, of the remoteness of the prior conviction, the absence of evidence that the defendant derived substantial income from criminal activity or that compelling extraordinary circumstances exist, including the minor nature of the present and prior crimes and the nature and amount of the CDS involved. See State v. Kirk, 145 N.J. 159, 168-69 (1996) (discussing guidelines). An examination of defendant's record demonstrates a substantial history of criminal offenses prosecuted at the Municipal and Superior Court levels, and the quantities of the drugs involved in the 1991 and present prosecutions were substantial. Although defendant claims to have maintained steady employment, to have established a permanent relationship with his child and its mother, and to have suffered from long-standing drug addiction, none of these facts compels a waiver by the prosecutor of an otherwise applicable extended term. Defendant's record illustrates that his response to leniency in the past has not been a cessation of criminal activity, but rather, a continuing history of offenses from 1991 to 1995, broken only by periods of incarceration.
In sum, we find no abuse of the court's sentencing discretion to have occurred in imposing the sentences at issue here, which were both below the midpoint of the sentencing range. The sentences, which properly reflected an assessment of applicable aggravating factors, which were found to outweigh nonexistent mitigating considerations, were neither manifestly excessive or unduly punitive. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).
We regard any arguments raised by defendant that have not been specifically addressed to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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