July 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAR LARGIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1041.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2007
Before Judges Parker and Seltzer.
Defendant Jamar Largin appeals from a judgment of conviction entered on December 7, 2004 after a jury found defendant guilty of third degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3) (Count One); and third degree distribution of cocaine in a school zone, N.J.S.A. 2C:35-7 (Count Two). At sentencing, Count One was merged into Count Two and defendant was sentenced to an extended term of nine years subject to four years parole ineligibility.
These charges arose out of a routine surveillance operation on St. George Avenue, the common border between Roselle and Linden. The operation was being conducted by the Union County Narcotics Strike Force with the assistance of Roselle Detective Sergeant William Brennan. In his role as a backup officer, Brennan had electronic devices to monitor the undercover officer's conversations and he observed the undercover officer through binoculars.
As Brennan was observing the scene, the undercover officer was approached by a man -- later identified as defendant -- who engaged the undercover officer in conversation. Brennan observed the undercover officer and defendant engage in an exchange that, based upon his training and experience, he believed was a drug transaction.
Brennan testified that when he observed the transaction, he was about "a hundred feet, maybe a little bit more" away and had a clear view of the scene. He described defendant as a black male with a light goatee, medium brown complexion, 6' 2" tall, weighing 165 pounds, "wearing a gray zippered sweatshirt, a white T-shirt and light blue jeans." Brennan was familiar with defendant from having observed him previously. After Brennan witnessed the transaction, he met the undercover officer at a separate location. The undercover officer gave Brennan "five glass vials with gold caps," which he had purchased from defendant. The vials contained white powder that was ultimately determined to be cocaine. Brennan showed the undercover officer a color photograph of defendant, which the officer identified as a photo of the person from whom he had just purchased the cocaine. A warrant was issued for defendant's arrest on June 10 and he was taken into custody on June 12, 2003.
In this appeal, defendant argues:
THE COURT BELOW ERRED IN TWICE DENYING DEFENDANT'S MOTION FOR A MISTRIAL
a. The State'[s] failure to disclose the use of vision enhancement during surveillance constitutes a discovery violation, prejudiced Defendant, and warrants reversal
b. The State's failure to disclose the involvement of a confidential informant (CI) constitutes a discovery violation pursuant to Brady, was prejudicial to defendant and warranted the granting of Defendant's request for a mistrial
THE INADEQUATE RESPONSE BY THE COURT TO A JURY NOTE DURING DELIBERATIONS HAD THE CLEAR CAPACITY TO PREJUDICE DEFENDANT AND CONFUSE THE JURY AND, ACCORDINGLY, REVERSAL OF DEFENDANT'S CONVICTION IS REQUIRED. (Not Raised Below)
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT[S] REVERSAL
THE COURT BELOW VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ANY MITIGATING FACTORS
During the trial, Detective Brennan testified to his observations during the surveillance operation. On cross-examination, defense counsel asked whether Brennan had binoculars. Brennan replied that he did. Defense counsel requested a sidebar and raised the issue of the State's failure to disclose Brennan's use of "vision enhancer instruments" prior to trial. The court responded that, based upon Brennan's answer, "You don't know whether, in fact, he used binoculars to make his observations."
The jury was excused and the court conducted a hearing pursuant to N.J.R.E. 104. During the hearing, Brennan testified that he used binoculars to confirm defendant's identity during the surveillance operation. Defendant then moved for a mistrial on the ground that the State failed to disclose, prior to trial, that "vision enhancing equipment" was used during the surveillance operation. The motion for a mistrial was denied, but the court ordered Brennan to return the following day with the binoculars so that defendant could examine them. The following day, Brennan was cross-examined and defense counsel questioned him on his use of the binoculars and his ability to observe the scene.
Defendant now argues that the State's failure to disclose Brennan's use of the binoculars prejudiced defendant because: "[I]t is conceivable that defense counsel would [not have] opted to make a misidentification argument intrinsic to the defense" and "[i]t is also possible that [d]efendant and defense counsel . . . would have considered entering a plea." (Emphasis added.)
Defendant seems to be arguing that his right to cross-examine Brennan with respect to observation of the surveillance operation translates to a right to be advised in advance of trial as to whether Brennan used binoculars. We find no such right articulated in the case law cited by defendant: State v. Ribalta, 277 N.J. Super. 277, 287-88 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995) (holding that the location of a surveillance site was protected by the "surveillance location privilege" and need not be disclosed on cross-examination unless defendant shows that it is necessary for the defense); State v. Crudup, 176 N.J. Super. 215, 220-21 (App. Div. 1980) (holding that a defendant has a right to cross-examine an officer on his observations during a surveillance operation). This argument lacks merit.
Defendant's claims that it was "conceivable" that he would have altered his misidentification defense and "possible" that he would have considered a plea are entirely too speculative at this juncture. Based upon our careful consideration of the record, we find that no prejudice accrued to defendant from the State's failure to disclose prior to trial that Brennan used binoculars during the surveillance operation. That is not to say we approve of the State's failure to include that fact in the discovery provided to defendant. Rather, our holding here reflects only that, under the circumstances presented, defendant has not demonstrated any prejudice from the late disclosure that Brennan used binoculars to observe defendant's drug transactions.
Defendant next argues that the trial court erred in failing to grant his second motion for a mistrial when the undercover officer, Keith Johnson, disclosed during cross-examination that a confidential informant was with him when he arrived at 1113 Morris Street. Defense counsel objected, the jury was excused and the court undertook a voir dire examination of Johnson, during which the court inquired whether the confidential informant provided information relating to defendant. The officer testified that, although the informant was present, he did not introduce defendant to the officer, nor did he identify defendant for the officer. Johnson testified unequivocally that the informant did not have any role during the transaction between defendant and the undercover officer.
In moving for a mistrial, defense counsel argued that "[t]he issue should have been addressed pre-trial. A notice would have been filed. We would have the opportunity to explore the fact that [the confidential informant] was in [the] car. [The confidential informant] obviously asked [the police] to come to the area." The court denied the motion for a mistrial and indicated that defendant could continue cross-examining Johnson concerning what, if any, role the confidential informant played during Johnson's transactions with defendant. Defense counsel proceeded to cross-examine Johnson extensively regarding the informant's presence.
Defendant now argues that if the presence of the informant had been disclosed prior to trial, defendant "may" have filed a notice of entrapment. He contends that the State's failure to disclose the presence of the informant is a violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963).
In State v. Martini, 160 N.J. 248, 268-69 (1999), our Supreme Court articulated the standard by which to evaluate an alleged Brady violation:
[T]he defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material.
The State does not dispute that it failed to disclose the presence of the confidential informant prior to trial. There is nothing in the record, however, to suggest that the State deliberately "suppressed" that evidence. Nevertheless, for the purposes of evaluating this argument, we will view the evidence as "suppressed." The question of whether the evidence was favorable to the defense and material must be considered in the factual context of the case. Ibid.; see also State v. Knight, 145 N.J. 233, 246 (1996).
Here, defendant argues that he "may" have asserted an entrapment defense but fails to sustain that argument. During defendant's argument for a mistrial, the court took a short recess to allow defense counsel to speak with defendant about the entrapment issue. After the recess, the court asked defense counsel:
[W]hat would you like to add factually in support of your entrapment defense in light of the fact that you have: (a) not filed a motion where your client has asserted that issue that he says this is what happened to him; and (b) there's nothing here that Black did other than saying, Hi.
Counsel responded that although he had talked to defendant "for [ten] or [fifteen] minutes[;] I don't know if he completely understands the -- the legal dynamics of it, but he's certainly prejudiced." The court inquired, "What's the prejudice?" Defense counsel responded, "I'm not prepared to address the [informant] issue right now." The court then declared a recess to allow defense counsel to spend more time talking with defendant and determining what course he wished to take.
The next day, defense counsel stated that this particular informant had been involved in a series of arrests with the same undercover officer. After extensive colloquy regarding the informant's background, the court allowed still more time for defense counsel to discuss the issue with defendant. In the end, however, defense counsel never stated that defendant would plead an entrapment defense. The evidence presented during the N.J.R.E. 104 hearing indicated that the informant had no role in introducing defendant to the undercover officer. Consequently, defendant has no basis for claiming an entrapment defense or prejudice arising from the late notice of the informant's presence.
As with the binoculars, we do not condone the State's failure to provide defendant with information regarding the presence of the informant prior to trial. Nevertheless, defendant has demonstrated no prejudice from the lack of disclosure prior to trial, leading us to conclude that the information was neither favorable to defendant or material to his defense. See Martini, supra, 160 N.J. at 268. The trial court gave defendant every opportunity to explore the issue with the undercover officer on cross-examination. We are persuaded that there was no error in the trial court's denial of defendant's motion for a mistrial. Moreover, the State demonstrated that the informant did not introduce defendant to the undercover officer or participate in the transaction.
Defendant next argues for the first time on appeal that the trial court's response to a jury question during deliberations was inadequate and had the capacity to prejudice defendant. During the jury charge, the court gave the following instruction regarding the photograph of defendant identified by the undercover officer:
Now there's evidence that a photograph was used to identify the defendant in this case. With reference to photographs submitted into evidence, you will notice that many or all of the photographs appear to have been taken by a law enforcement agency or some other governmental entity. You are not to consider the fact that the agency obtained the photograph of the defendant as prejudicing him in any way. The photographs are not evidence that the defendant has ever been arrested or convicted of a crime.
Such photographs come into the hands of law enforcement from a variety of sources, including but not limited to, the driver's license application, passports, ABC identification cards, various forms of government employment, private employment requiring government regulation, security guard applications, or from any variety of sources totally unconnected with any criminal activity.
At the end of the jury instructions, defense counsel did not object to any portion of the charge.
While the jurors were deliberating, they sent a note asking:
If [defendant] was not part of the original operation why was his picture available at the meeting place?
After reading the question to counsel, the court suggested that he respond to the jury by saying: "Your question goes beyond the scope of the evidence that has been presented, and you are to base your decision on the evidence which is presented and not on . . . factors which are outside of the evidence." The court then asked counsel for their suggestions. Defense counsel responded by requesting that the judge re-charge the jury that it is "not to consider the fact that the police obtained the photograph of the defendant as prejudicing him in any way." The State agreed, but the court responded to the jury question as follows:
Your question goes beyond the scope of the evidence that has been presented. You are to base your decision based upon the evidence that is presented solely and not on factors which are outside of the evidence.
Defendant raised no objection to the court's instruction on the jury's question.
Defendant now argues that the trial court's response was inadequate in that "the court should have admonished the jury that it could draw no negative inferences from the police possession of defendant's photograph." Defendant relies on State v. Thomas, 76 N.J. 344 (1978), in support of his argument. Thomas is inapplicable here, however. Thomas involved the murder of a police officer. Id. at 349. During the deliberations, the jury sent two questions indicating that they were confused about the statutes included in the jury charge. Id. at 354. The defense counsel objected to a mere re-reading of the statute and requested that the court reinstruct the jury "that a finding of intent to kill is necessary to support a verdict of first degree murder." Ibid. The court declined. Ibid. The Supreme Court found that simply re-reading the same statutes to the jury did not resolve their confusion and "[led] the jury into concluding that first degree murder was the only possible verdict under that statute." Id. at 356. Accordingly, the Court reversed and remanded for a new trial. Id. at 367.
Here, there was no such confusion. The court's initial charge to the jury indicated that the police had various sources for obtaining photographs. In this instance, the jury was apparently inquiring why the police had a photograph of this particular defendant during this surveillance operation. Defense counsel agreed with the court that to charge the jury any further on this issue would merely focus undue attention on it.
We are satisfied that the court's response to the jury's question did not unduly prejudice defendant, nor did it create any confusion in the jurors' minds. Moreover, a defendant is required to challenge jury instructions before the jury retires, so that the court may cure any defect in the charge. R. 1:7-2; State v. Harris, 373 N.J. Super. 253, 270 (App. Div. 2004), certif. denied, 183 N.J. 257 (2005). Where defendant fails to object, it may be presumed the instruction was adequate. State v. Macon, 57 N.J. 325, 333 (1971). The absence of an objection to the charge is indicative that defense counsel perceived no prejudice would result. State v. Wilbely, 63 N.J. 420, 422 (1973).
With respect to his sentencing arguments, defendant maintains -- and the State concedes -- that the matter should be remanded for resentencing under State v. Natale, 184 N.J. 458 (2005). We agree. The matter is remanded for reconsideration of the extended term. Id. at 487-88.
Defendant's argument relating to mitigating factors that should have been considered is without merit. The trial court considered the appropriate factors based upon the evidence in the record. We find no error in its failing to consider the mitigating factors proposed by defendant.
Accordingly, defendant's conviction is affirmed. His sentence is vacated, however, and the matter is remanded for reconsideration and resentencing pursuant to Natale and State v. Thomas, 188 N.J. 137 (2006).
© 1992-2007 VersusLaw Inc.