September 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHMANN REEDS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division - Criminal Part, Bergen County, Ind. No. 02-12-2827.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 11, 2007
Before Judges Axelrad and Sapp-Peterson.
Following denial of his motion to suppress, defendant Rahmann Reeds was convicted by a jury of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one), and second-degree possession of heroin, in a quantity of one-half ounce or more, but less than five ounces, with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(2) (count two), based on a search of an automobile he was operating.*fn1 On April 27, 2005, defendant's motion for a judgment of acquittal or new trial was denied. That same day, Judge John Conte granted the State's motion for a mandatory extended term as a repeat drug offender, N.J.S.A. 2C:43-6f. He merged count one and convictions of a motor vehicle summons arising out of the same incident with count two, and sentenced defendant on the latter to a fifteen-year custodial term with a six-year period of parole ineligibility made consecutive to the sentence he was serving. Appropriate mandatory monetary assessments and loss of driving privileges were imposed.
On appeal, defendant raises the following arguments through counsel:
POINT I THE TRIAL COURT REVERSIBLY ERRED IN DENYING REEDS' MOTION TO SUPPRESS THE SEIZED EVIDENCE BECAUSE (1) THAT STOP UNLAWFULLY WAS BASED UPON RACE AND (2) EVEN ASSUMING ARGUENDO THE LEGALITY OF THAT STOP, BECAUSE OF CONSTITUTIONAL IMPROPRIETIES IN PULLING PASSENGER MARK WHITLEY OUT OF THE CAR WITHOUT SUFFICIENT JUSTIFICATION AFTER THAT TRAFFIC VIOLATION STOP.
(U.S. Const. Amends IV, VI & XIV; N.J. Const. (1947) Art. I, Paras 7 & 10)
POINT II THE TRIAL COURT REVERSIBLY ERRED IN REJECTING DEFENSE COUNSEL NEARY'S MOTION FOR A MISTRIAL BECAUSE (1) THE REQUIRED RANDOMNESS OF THE JURY PANEL WAS DESTROYED WHEN ONE PANEL OF POTENTIAL JURORS WAS RELEASED IN THE MIDDLE OF THE JURY SELECTION PROCESS AND A TOTALLY NEW PANEL WAS USED FOR THE COMPLETION OF THAT SELECTION PROCESS AND (2) BECAUSE THE PROSECUTION USED ITS PEREMPTORY CHALLENGES INAPPROPRIATELY TO DISCRIMINATE IN REMOVING BLACKS AND MORE PARTICULARLY BLACK WOMEN FROM THE JURY. (U.S. Const. Amend XIV; N.J. Const. (1947) Art. I, Paras. 5 9 and 10.)
POINT III THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE EVIDENCE REGARDING REEDS' OTHER BAD ACTS AND CRIMES SUCH AS POSSESSION OF MARIJUANA BLUNTS, AND PROVIDING A FALSE NAME TO AVOID ARREST AND PROSECUTION UNDER N.J.R.E. 404B. (U.S. Cont. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10) (NOT RAISED BELOW)
POINT IV THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO SUSTAIN DEFENSE COUNSEL'S OBJECTION THAT DETECTIVE SWAN, THE STATE'S EXPERT WITNESS, EXCEEDED THE BOUNDS OF LEGITIMATE TESTIMONY BASED UPON A HYPOTHETICAL QUESTION IN GOING BEYOND WHETHER THAT SCENARIO WAS CONSISTENT WITH DISTRIBUTION RATHER THAN PERSONAL USE TO AN OPINION THAT REEDS AND THE CO-DEFENDANTS ALL HAD CONSTRUCTIVE POSSESSION OF THE HEROIN WHICH WAS THE PRIMARY ISSUE WHICH THE JURY HAD TO DECIDE. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10)
POINT V REEDS' CONVICTIONS AND SENTENCE SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT IN EXCEEDING THE SCOPE OF LEGITIMATE COMMENT ON SUMMATION AND ARGUING WELL BEYOND THE SCOPE OF THE UNDERLYING RECORD IN HER SUMMATION. (U.S. Const. Amend. VI & XIV; N.J. Const. (1947) Art. I, Para. 10) (PARTIALLY RAISED BELOW)
POINT VI THE TRIAL COURT REVERSIBLY ERRED IN DENYING REEDS' MOTIONS FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT EACH OF THE ELEMENTS OF THE CRIMES CHARGED INCLUDING THAT REEDS WAS IN ACTUAL OR CONSTRUCTIVE POSSESSION OF THE HEROIN WHICH WAS FOUND BEHIND CO-DEFENDANT MARK WHITLEY'S LEGS AND UNDER HIS FEET ON THE FLOOR OF THE PASSENGER SIDE OF THE VEHICLE'S FRONT SEAT. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para 10)
POINT VII REEDS' FIFTEEN-YEAR PRISON TERM WITH SIX YEARS OF PAROLE INELIGIBILITY WAS ILLEGAL AND EXCESSIVE BECAUSE THE COURT INAPPROPRIATELY GRANTED THE PROSECUTOR'S MOTION FOR AN EXTENDED TERM AND BECAUSE THE COURT IMPROPERLY DETERMINED THE AGGRAVATING AND MITIGATING FACTORS AND THEIR WEIGHTS IN THE CASE AT BAR.
POINT VIII REEDS SHOULD BE GIVEN APPROPRIATE JAIL TIME AND GAP TIME CREDITS AGAINST HIS SENTENCE CASE AT BAR.
In a supplemental pro se brief, defendant asserts that he was stopped as a result of racial profiling, he was unaware there was heroin in the vehicle, and he requests assistance in having his jail credits reconsidered. The State concedes the matter should be remanded for resentencing for calculation of appropriate gap/jail time credits. We reject defendant's arguments, and with the exception of the gap/jail time credit remand, we affirm defendant's conviction and sentence.
During the four-day trial, the State presented the testimony of Bergen County Police Sergeant James Mullin, one of the officers who effectuated the stop of defendant's automobile; Rupal Frank-Slotwinski, a forensic scientist with the New Jersey State Police who analyzed the drugs seized from defendant's vehicle; and Detective David Swan of the Bergen County Prosecutor's Office, an expert in the area of narcotics distribution and possession. The defense presented no witnesses. The evidence presented was that the officers pulled defendant over after they observed him speeding and driving erratically after exiting the George Washington Bridge onto Route 95. Officer Mullin smelled burnt marijuana while requesting driving credentials. Defendant admitted to having neither a license nor insurance card and gave the officer a false name. Defendant was directed to exit the vehicle and go to its rear where Officer Schacht was located.
Officer Mullin then proceeded to the passenger side and continued to smell marijuana as he spoke to the front seat passenger, Mark Whitley. After observing a marijuana blunt in the center console ashtray, and requesting Whitley to exit the vehicle, Officer Mullin observed sixteen bricks of what was identified as heroin on the floor in the area where the passenger had been seated. Defendant was charged, along with Whitley and the back seat passenger, Isaac Outen.
The arguments raised by defendant in Points I, III, and V are without sufficient merit to warrant discussion. R. 2:11-3(E)(2). There was no evidence elicited at the suppression hearing that would indicate defendant was illegally stopped on the basis of his race. On the contrary, there is more than ample evidence the officer observed defendant driving in an unsafe manner and thus had a reasonable and articulable suspicion to conduct an investigatory stop of defendant's vehicle. See State v. Halsey, 340 N.J. Super. 492, 495, 499 (App. Div. 2001) (officer had reasonable suspicion to stop the vehicle after observing it weaving in its lane, riding the lane markings, and tailgating the vehicle in front); State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (officer was permitted to conduct an investigatory stop after observing the vehicle weave in and out of its lane). N.J.R.E. 404(b) is inapplicable to defendant's challenge to the evidence relating to his giving a false name upon being pulled over and the marijuana seized from the vehicle as such acts are components of the crime that was the subject of the trial. State v. Long, 173 N.J. 138, 161 (2002). Nor do we find the prosecutor's remark in summation regarding the "drug fairy" to be so egregious as to deny defendant a fair trial by improperly placing the burden of proof upon him and his co-defendants. State v. Frost, 158 N.J. 76, 83 (1999).
We are further satisfied the jury was properly assembled from pools representing a fair cross-section of the community. Moreover, defendant failed to demonstrate a prima facie case of the State discriminatorily exercising its peremptory challenges under State v. Gilmore, 103 N.J. 508 (1986), to remove African American women from the jury.
Jury selection occurred on Thursday, September 30, 2004; Tuesday, October 5, 2004; and Wednesday, October 6, 2004. On September 30, the court questioned and excused members of the panel, and fourteen prospective jurors were preliminarily selected. Each party was then afforded the right to exercise its peremptory challenges. At the end of the first day of jury selection, which was the end of the trial week, Judge Conte excused all but the fourteen jurors who were in the box, noting he would have to get another panel in for the following week.
When voir dire commenced on Tuesday, defendant's attorney objected to the fact that the jurors who had not yet been questioned from the initial panel from the prior week had not returned for jury selection, claiming that using a new panel altered the random selection process. He requested the court to either dismiss the fourteen jurors in the box or to reassemble the prior panel. Judge Conte denied the motion, finding no reason to recall the old panel as defendant could not show that impartial jurors could not be obtained using the new panel and further noting defendant's lack of law to substantiate his objection.
During the day, R.M., an African American female who worked as a nutrition assistant, was placed in the box, subsequent to which the State declared the jury satisfactory. Later in the "round" the State used a peremptory challenge to excuse R.M. Co-defendant Whitley's counsel expressed concern over, but did not object to, this challenge. The State pronounced the jury as satisfactory five times before it then exercised a peremptory challenge to excuse T.C., a female African American college student. Defense counsel argued the State's actions in excusing the two African American women established a prima facie case of discriminatory use of peremptory challenges and moved for a mistrial. The prosecutor responded that there was some doubt as to whether R.M. was Hispanic or African American, and explained that T.C. was a college student with a potential liberal tendency who would not be a beneficial juror from the State's point of view in a drug case. After reviewing the principles set forth in State v. Gilmore, Judge Conte denied the motion, finding that the excusing of two African American jurors of the five available African Americans on the combined panels did not rise to a prima facie pattern of an intent to discriminate against a cognizable group and further found the prosecutor's reason for excusing T.C. was a legitimate one.
The following day another new panel was brought in to complete the jury selection process. Altogether, throughout voir dire, the court excused one African American for cause and defense counsel exercised its peremptory challenge to excuse another. One African American male served on the jury.
There is no merit to defendant's argument that the jury panel lacked "randomness" merely because the trial judge excused the members of the jury panel who had not been seated in the box at the end of the trial week and brought in a new panel the following week. The public and random statutory jury selection process was followed, N.J.S.A. 2B:20-4 and N.J.S.A. 2B:23-2, which itself contemplates the potential use of several panels in selecting one jury. Defendant presents no evidence that the unused panel that was excused at the end of the day Thursday presented a more random panel or contained a greater number of African American jurors than the panel brought in the following Tuesday, nor does the record support any assertion that the use of the second panel in any way prevented defendant from receiving a jury made up of a fair cross-section of the community.
We find defendant's Gilmore argument equally unpersuasive. Defendant is only entitled to an impartial jury "drawn from pools that represent a 'fair cross-section' of the community," not that the resulting jury represents the same, and not even that the resulting jury includes members of his own race. State v. Ramseur, 106 N.J. 123, 215, 216 (1987) (quoting Duren v. Missouri, 439 U.S. 357, 368 n.26, 99 S.Ct. 664, 670 n.26, 58 L.Ed. 2d 579, 589 n.26 (1979)); see also U.S. Const. amend. VI. The State, however, is prohibited under the Fourteenth Amendment Equal Protection Clause from exercising its peremptory challenges to remove potential jurors based on their race. State v. Gilmore, supra, 103 N.J. at 521-22. The State enjoys a rebuttable presumption that it has exercised its peremptory challenges on constitutionally permissible grounds. Id. at 535. In order to rebut this presumption, a defendant must make a prima facie showing that there is a "substantial likelihood" of purposeful discrimination in that the prosecution wholly or disproportionately excluded members of a cognizable group, such as African Americans. Id. at 522, 536. The record supports the trial judge's findings and conclusion that the State did not exercise its peremptory challenges in a discriminatory manner. See State v. Watkins, 114 N.J. 259, 266 (1989) (setting forth the factors to consider in determining whether a defendant has satisfied his or her burden necessary to rebut the presumption that the State exercised its peremptory challenges on constitutionally permissible grounds).
We turn now to the arguments raised by defendant in Points IV and VI pertaining to the issue of constructive possession of the heroin. Defendant contends the court erred in failing to grant a mistrial when Detective Swan, the State's expert in narcotics distribution, improperly testified on constructive possession because: (1) his testimony was based on a hypothetical question containing facts not in the record and (2) exceeded his expertise and addressed the ultimate culpability issue. Defendant further contends the court erred in denying his motion for judgment of acquittal or for a new trial, asserting the State failed to prove beyond a reasonable doubt:
(1) the elements of actual or constructive possession of the drugs and (2) that the quantity of heroin was more than one-half ounce but less than five ounces. We disagree.
The prosecutor presented a hypothetical question to the detective based upon the following facts in evidence: three persons in a borrowed car, traveling from New York on Route 95 at night are stopped for a motor vehicle infraction and give false names; the smell of burnt marijuana emanates from the car, on the front passenger floor there are loose folds of heroin, six bags of marijuana and fifteen bricks of heroin found under the front seat; and over $900 in cash is found on the three individuals. The detective opined that all three individuals would be in constructive possession of the drugs with the intent to distribute them because there was a large amount of drugs even for three persons, that all three were likely involved in the distribution enterprise, with one possibly acting as the "lookout," the other as the "money man" and the third as "security;" that the use of false names showed an intent to avoid apprehension and the use of a borrowed car was typical for drug dealers to avoid seizure of their own vehicle; and the fact that at least one person was smoking marijuana and that the bags of marijuana were found near the heroin showed that those in the car knew the heroin was there.
At the charge conference defense counsel requested a jury instruction that the expert's opinion on constructive possession should be disregarded and that such issue is a jury determination. With the approval of all counsel, the judge instructed that it was for the jury to decide first, whether all the facts assumed in the hypothetical question had been proven, and if the jury found that some facts were not proven, then that could impact on the value and weight of the expert's testimony and opinion; next, that the testimony of Detective Swan was admitted solely on the issue of whether the drugs were possessed for personal use or for distribution; and also, that the issue of possession and constructive possession was for the jury to decide based upon the evidence adduced at trial.
The hypothetical question posed to Detective Swan was framed and responded to in accordance with the State v. Summers, 176 N.J. 306 (2003), and State v. Odom, 116 N.J. 65 (1989), guidelines. The judge gave the appropriate standard jury instruction about independently assessing both the facts contained in the hypothetical and the expert's opinion. Moreover, any potential prejudice caused by the detective's use of the term "constructive possession," which was not objected to by any counsel during his testimony, was dispelled by Judge Conte's instruction, which was consented to by all counsel, that the jury itself must resolve the question of whether the drugs were constructively possessed. We must presume the jurors followed this specific admonition and convicted defendant based solely upon the evidence presented in this case. State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932 (2001); State v. Manley, 54 N.J. 259, 270 (1969).
Viewing the evidence in the light most favorable to the State, and according deference to the jury's responsibilities of weighing the evidence and drawing reasonable inferences therefrom, a reasonable jury could have found the essential elements of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1), and second-degree possession of heroin, in a quantity of one-half ounce or more, but less than five ounces, with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(2). Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed. 2d 560, 573-74 (1979); State v. Kittrell, 145 N.J. 112, 130 (1996). Thus, a judgment of acquittal was not warranted. The State clearly met its burden of proof that defendant constructively possessed the heroin found in the car he was operating. See State v. Palacio, 111 N.J. 543, 552 (1988) (discussing the sufficiency of evidence necessary to permit a jury to infer that a defendant constructively possessed narcotics). Defendant was driving a borrowed car coming from the New York City area, a major heroin distribution center, with over fifteen bricks of heroin totaling 42.14 grams (1.48 ounces), valued at over $8,000, located under the front passenger seat. The State's expert was not required to test all 798 packets of heroin; she analyzed ten folds randomly selected, each of which tested positive for heroin and there was no evidence the other folds contained anything other than heroin. As the trial court noted in denying defendant's motion for judgment of acquittal and for a new trial, "[i]f a random sample from the bulk is obtained and if that sample tests positively for heroin, that is sufficient to support the conclusion that the unsold residue is of the identical substance, absent any evidence to the contrary." State v. Jester, 68 N.J. 87, 91 (1975).
Other than the conceded remand for consideration of gap/jail time, we find no error in the sentence imposed. Defendant was appropriately given a mandatory extended sentence as a persistent drug offender, N.J.S.A. 2C:43-6f. The judge properly analyzed the aggravating and mitigating factors, followed and applied the sentencing guidelines and criteria, and the sentence imposed is not manifestly excessive nor does it shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984).
The conviction and sentence is affirmed other than for remand for resentencing for calculation of gap/jail time credits.