September 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VICTOR HAGOOD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-01267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Parker and R. B. Coleman.
Defendant Victor Hagood appeals from a judgment of conviction entered on October 7, 2005 after a jury found him guilty of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; and fourth degree resisting arrest, N.J.S.A. 2C:29-2a. After the appropriate mergers, defendant was sentenced on the school zone charge to an extended term of ten years subject to five years parole ineligibility. On the resisting arrest charge, he was sentenced to a term of one year consecutive to the ten-year term, resulting in an aggregate term of eleven years.
The charges against defendant arose from a surveillance operation supervised by Lieutenant Paul Schuster of the New Brunswick Police Department. On July 15, 2004, at 10:00 a.m., Schuster and Detective Christopher Plowucha were observing the corner of Lee Avenue and Seaman Street, a high drug activity area. Plowucha was using binoculars while both officers sat in an unmarked car.
Plowucha observed defendant as he was approached by "an older black male." After defendant had a conversation with the man, they walked together up Lee Avenue, during which time the man gave defendant cash. Defendant crossed the street, ran back across the street to the man a few seconds later and handed something to him. The officers took no action but continued to observe defendant. About ten minutes later, a car pulled up, defendant approached the passenger side, had a conversation and ran back across the street, returning to the vehicle. Plowucha observed defendant hand two bags of what he believed was heroin to someone in the vehicle in exchange for cash. Plowucha lost sight of defendant as he ran across the street in each of the incidents, but saw defendant return and was otherwise able to observe the transactions.
After defendant gave the drugs to the people in the car, a backup team stopped the car looking for the drugs. When the officers approached the car, Jose Ayala, a passenger in the vehicle, put two packets of heroin in his mouth, but ultimately spit them out and they were retrieved by the officers. The occupants of the car were charged with possession of heroin.
Meanwhile, Plowucha continued to observe defendant meeting with various people, running across the street and returning to give them packages. Plowucha advised the backup units to arrest defendant. As the backup team approached defendant, he ran through a nearby news stand and several backyards, climbing over fences. The officers ultimately arrested him, but found no drugs on his person. After arresting defendant, the officers searched the area across the street where Plowucha observed defendant going to get drugs for his customers. They found "brick" wrapping used to wrap heroin but no drugs. Defendant had $244 in cash on his person.
After he was arrested, Ayala gave a tape-recorded statement that he had purchased the heroin from defendant for $25. At trial, however, Ayala testified for defendant that he did not purchase any heroin from defendant but had purchased the two bags from another individual on Seaman Street. He claimed that when the police officers approached his car, he thought he was being hijacked. Ayala testified that he purchased the drugs from a different seller and that he had lied at the police station because he was going through withdrawal.
In this appeal, defendant argues:
POINT ONE THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT EVIDENCE OF HAGOOD'S ALLEGED AND UNCHARGED PRIOR CRIMINAL ACT THROUGH AN INVESTIGATING OFFICER, WHO WAS ALLOWED TO TESTIFY AS BOTH A FACT AND EXPERT WITNESS, WITHOUT THE PROPER FOUNDATION HAVING BEEN LAID FOR THE OFFICER'S EXPERTISE IN NARCOTICS TRANSACTIONS. ANY PROBATIVE VALUE OF THE OFFICER'S OPINION THAT THE PRIOR ACT WAS A DRUG TRANSACTION WAS FAR OUTWEIGHED BY ITS PREJUDICIAL EFFECT ON THE JURY AND SHOULD HAVE BEEN EXCLUDED. N.J.R.E. 403(a), 404(b). (Partially Raised Below)
B. The Trial Court Failed to Balance Whether the Probative Value, if Any, of the Other Bad Acts Evidence Outweighed the Extremely Prejudicial Effect of Such Evidence on the Jury
C. The Trial Court Failed to Assess Whether Detective Plowucha's "Expert" Opinion Testimony Would Assist the Jury in Understanding Something Outside of the Juror's Knowledge and Failed to Weigh the Probative Value of that Testimony Against the Risk of Undue Prejudice
D. The Trial Court's Untimely, Vague, One-Sided, and Inaccurate Limiting Instructions Failed to Mitigate the Prejudicial Effect of the Prior Bad Acts and Opinion Testimony, Particularly When, in Summation, the Prosecutor Erroneously Referred to the Detective's Expertise
E. The Repeated References by the State and the Court to the "Older Black Male" Were Highly Improper and Prejudicial
POINT TWO BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE, POSSESSION WITH INTENT TO DISTRIBUTE, AND POSSESSION WITH INTENT TO DISTRIBUTE ON OR NEAR SCHOOL PROPERTY, THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON THESE CHARGES; MOREOVER, THE VERDICT ON THESE CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE
A. The State's Evidence was Insufficient to Prove Beyond a Reasonable Doubt Hagood's Possession of a Controlled Dangerous Substance with Intent to Distribute on or Near School Property
POINT THREE THE TRIAL COURT'S INSTRUCTION ON JOSE AYALA'S CREDIBILITY, WHICH FAILED TO ADDRESS THE REASONS AYALA GAVE FOR HIS INCONSISTENT STATEMENTS, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)
POINT FOUR BECAUSE THE TRIAL COURT ERRONEOUSLY APPLIED AGGRAVATING FACTORS, FAILED TO FIND APPLICABLE MITIGATING FACTORS, AND IMPOSED A SENTENCE THAT SHOCKS THE JUDICIAL CONSCIENCE, THE TEN YEAR SENTENCE WITH A FIVE YEAR PAROLE DISQUALIFIER [THE MAXIMUM EXTENDED TERM FOR A THIRD DEGREE OFFENSE] MUST BE REDUCED
POINT FIVE THE MATTER MUST BE REMANDED FOR RE-SENTENCING PURSUANT TO STATE V. THOMAS
In Point One of his brief, defendant focuses on Plowucha's testimony regarding the transaction between defendant and the "older black male." Defendant maintains that the trial court erred in allowing that testimony because (1) it involved prior bad acts; (2) it allowed Plowucha to render an expert opinion that the transaction involved drugs; (3) the trial court's limiting instruction was "untimely, vague, one-sided, and inaccurate;" and (4) the references to the "older black male" injected racial prejudice into the trial. We will address each of those issues below.
We note initially that defendant made no objection to this testimony when Plowucha testified on direct examination. Consequently, it must be evaluated under the plain error standard. R. 2:10-2. Defendant's interaction with the "older black male" was part of the res gestae, i.e. the thing done. In other words, the testimony regarding the uncharged transaction was a component of defendant's overall criminal conduct. See State v. Ortiz, 253 N.J. Super. 239, 244 (App. Div. 1992). "N.J.R.E. 404(b) 'does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial.'" State v. Long, 173 N.J. 138, 161 (2002) (quoting State v. Martini, 131 N.J. 176, 241 (1993)).
In Ortiz, we addressed a similar situation in which there was testimony concerning uncharged prior drug transactions observed by the police during a surveillance operation. 253 N.J. Super. at 244. We noted in Ortiz that "the observed transactions occurred within [twenty-five minutes] to an hour immediately prior to defendant's arrest. Thus, the testimony concerned the same criminal event." Ibid. Here, as in Ortiz, the uncharged transaction was part of defendant's criminal conduct in distributing a controlled dangerous substance in a school zone. We find no error in the trial court's admission of that testimony.
At the outset of Plowucha's testimony, he was asked about his training and experience in narcotics. He testified that he had "been trained by the New Jersey State Police Academy, the Passaic County Police Academy, the Union County Narcotics Strike Force as well as the Top Gun Narcotics Seminar, [and had] probably been involved in over six hundred narcotics investigations leading to hundreds of arrests." He testified further that he had been involved in the investigation of street level narcotics transactions for the past three years. Given his experience and training, Plowucha was qualified to testify with respect to the nuances of the drug trade and terminology commonly used, even though not technically qualified as an expert witness. State v. Berry, 140 N.J. 280 (1995); State v. Jackson, 278 N.J. Super. 69 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995).
On cross-examination, defense counsel questioned Plowucha regarding his characterization of defendant's conduct as drug transactions. The court interrupted, stating that defense counsel was "getting far beyond the direct examination in this case and . . . calling for [the] officer's speculation." The court then turned to the jurors and gave the following limiting instruction:
I'm going to direct you, ladies and gentlemen of the jury, to disregard any of the testimony of Detective Plowucha regarding his opinion as to what he was observing. The detective is here to testify about his observations, and his observations are evidence that you may consider. It is up to you to draw whatever inferences you wish to draw from that evidence. But the detective's opinion as to the meaning of what he was observing is really not admissible evidence for you to consider. So please disregard that aspect of the detective's testimony.
Defendant, having opened the door to Plowucha's testimony, now complains that it was improperly admitted. In fact, the testimony was stricken by the court. The trial judge directed the jurors to disregard the testimony and reminded them that they were to draw their own inferences from the evidence, rather than rely on the conclusions drawn by the witness. We assume that the jurors followed the instruction, State v. Nelson, 173 N.J. 417, 450 (2002), and we find no error here.
Defendant next argues that the prosecutor, in referring to Plowucha's testimony, unduly prejudiced defendant by directing the jury's attention to Plowucha's opinion on the ultimate issue in the case. We have carefully reviewed the prosecutor's remarks in summation and we are persuaded that she fairly commented on the evidence presented.
Finally, defendant argues that the repeated references to the "older black male" were a "highly improper and prejudicial" insertion of race into the case. We disagree. The reference was made to characterize a transaction, rather than identify a particular individual. We find nothing unduly prejudicial in the reference. Moreover, the trial court gave the model charge to the jury, directing it to consider the evidence fairly, impartially and without sympathy or prejudice. Again, we assume the jurors followed that instruction. Nelson, supra, 173 N.J. at 450.
In his second point, defendant argues that the State failed to prove defendant's guilt beyond a reasonable doubt and the verdict was against the weight of the evidence. We have carefully reviewed the record in this matter and we are satisfied that the State met its burden and that the evidence fully supports the jury's finding of guilt beyond a reasonable doubt. R. 2:11-3(e)(2); State v. Spivey, 179 N.J. 229, 236 (2004).
Defendant argues in Point Three that the trial court improperly instructed the jury with respect to Jose Ayala's credibility. Ayala initially told police that he purchased the drugs from defendant. At trial, he retracted that statement, claiming that he purchased the drugs from another individual but lied to the police because he was in withdrawal immediately after his arrest. He testified at trial that he was "feeling guilty" because he "helped this [cop] lock someone up that got [sic] nothing to do with it." Defendant now argues that the trial court improperly omitted a section of the model jury charge relating to prior inconsistent statements of a witness.
The judge first gave the jury the model charge on credibility. He then addressed Ayala's testimony specifically:
Now, with respect to the testimony of Jose Ayala, you may recall that there was evidence in the case presented that Jose Ayala made a statement to Lieutenant Schuster that was inconsistent with other statements that he made and was also inconsistent with his testimony at this trial. More specifically, at the time of his arrest Mr. Ayala told Lieutenant Schuster that Victor Haygood [sic], the defendant, had sold him the heroin that he had been arrested with and had in his possession. At a later time before this trial and then at this trial[,] he of course stated that a young Hispanic male showed him the heroin. It is up to you to decide which of those versions, if either of them, is true.
You have to decide when there are inconsistent statements made by a person to the extent to which either of the statements is true and credible. You have a right to consider the fact that there were inconsistent statements to determine the overall credibility of the witness. You have a right to accept one statement as true and the other statement as false. You could decide that both statements are false or to the extent that the statements are not actually inconsistent, you may decide that both statements are partially true or partially false.
The bottom line is it is for you to consider these earlier statements made by Mr. Ayala and his testimony in this court and for you to determine what if any of these statements or testimony reflects the truth as you find it to be.
You should consider, when you do that, the factors that I just explained to you earlier governing the credibility of witnesses, but you should also consider where and when any prior inconsistent statements were made, the reasons allegedly for those statements, the circumstances under which they were given and ultimately their relationship to all the other evidence in the case.
So you've got to weigh these factors, consider these statements, consider the reasons why they were made, how they were made, the circumstances, and then consider the testimony at the trial and ultimately the other evidence in the case and see after using your own common sense how much weight you want to give to either the statements or the testimony at trial.
And, of course, you shall also consider as you must with all other witnesses, if Victor - I mean if Jose Ayala had any motive to provide any statement that he previously made or to testify as he did.
One additional factor that the law allows you to consider is the evidence that Jose Ayala had been previously convicted of certain crimes. Under our law evidence of conviction of crime may be used and considered in determining the credibility of a witness. A jury has a right to consider whether a person who has previously been convicted of a crime and therefore violated the law would be more likely to ignore the legal obligation to tell the truth on the witness stand than someone who has never been so convicted.
So in determining the credibility of Mr. Ayala, you have a right to consider the nature of his prior convictions, when this occurred. But, again, the law only permits the evidence to be received for the purpose of the credibility of the witness and not for any other purpose.
You're not, however, obligated to change your opinion as to the credibility of a witness simply because of a criminal conviction. You have a right to consider those criminal convictions but you're not obligated to consider those criminal convictions for the purpose of changing your opinion as to the credibility of a witness.
Again, you can consider the criminal conviction along with all the other factors I explained in determining the credibility of that witness, that is Mr. Ayala.
The court then continued to instruct the jurors on credibility with the "false in one, false in all" charge, concluding with the instruction: "Again, you are the judges of the facts. You make these determinations."
Defendant made no objection to the charge at trial. In our view, the trial court's instruction regarding Ayala's prior inconsistent statements was more than adequate and did not constitute any error, much less plain error. R. 2:10-2.
In defendant's sentencing arguments, he initially maintains that the trial court erroneously applied the aggravating factors and failed to find applicable mitigating factors. We disagree. The judge took into consideration the evidence at trial, as well as the presentence report which detailed defendant's prior criminal history, including three convictions for indictable drug offenses, two of which resulted in state prison terms.
Defendant further argues that the matter should be remanded for resentencing under State v. Thomas, 188 N.J. 137, 154 (2006) (holding that State v. Natale, 184 N.J. 458 (2005), applies to extended terms above the mid-range for extended terms). We find no merit in this argument. Defendant's sentence to the maximum extended term was a proper exercise of discretion on the part of the trial court. State v. Roth, 95 N.J. 334, 363-64 (1984).
© 1992-2007 VersusLaw Inc.