October 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVEN LAWHORN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 05-06-0542, 05-04-0368 and 04-08-0585.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges C.S. Fisher and C.L. Miniman.
Indictment No. 05-04-0368 charged defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), and third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). At the conclusion of a two-day trial, a jury found defendant guilty of all these charged offenses.
During that trial, the jury heard evidence that upon receiving a tip from a reliable confidential informant, Detective Steven Ingram of the Gloucester County Prosecutor's Office, while in an undercover capacity, went to a motel room in Glassboro on December 14, 2004. He knocked and the door was opened by an individual whom he subsequently identified as defendant. No one else was in the room. Ingram indicated an interest in buying crack-cocaine. Defendant provided Ingram with several small bags in exchange for twenty dollars. They shook hands and Ingram departed.
Later, Ingram was debriefed by Detective Charles Landi. He described defendant as being six-foot-three-inches and approximately 230 pounds, with shoulder length corn rows. Landi showed Ingram a photograph of the defendant; Ingram confirmed that the person from whom he purchased CDS was the person in the photograph.
On January 7, 2005, Detective Ingram was again working undercover. He returned to the same motel room in Glassboro. When he knocked on the door, an African-American male opened it and allowed him to enter. Two other African-American males were in the room with defendant, who was sitting at a table inserting marijuana into a cigar.*fn1 Ingram approached defendant and asked for fifty dollars worth of crack-cocaine. Defendant removed seven smaller bags from a larger bag and gave them to Ingram in exchange for fifty dollars. Ingram left and turned the CDS over to Detective Landi.
On January 12, 2005, Ingram was again working undercover in the area of Church and Wilmer Streets investigating complaints of drug sales in the area. His intent was to make cold contacts*fn2 with suspected sellers to purchase drugs. At around 11:00 a.m., Ingram drove his undercover vehicle into the area and parked just off the intersection of Church and Wilmer Streets. While Ingram was walking up Wilmer Street, defendant drove into the area in a white Chevy Lumina, and pulled over to speak with Ingram. Defendant recognized Ingram and asked what he needed. Ingram purchased twenty dollars worth of crack cocaine and met with Detective Landi after the purchase. Defendant was later arrested and charged with offenses based upon these three transactions.
Defendant took the stand at trial and testified that Ingram had misidentified him as the seller of drugs by confusing him with his first cousin, Brian Carr. And, in an attempt to refute Ingram's testimony regarding the January 12, 2005 transaction, defendant testified that his driver's license had been suspended in 2003, it had not been restored by January 2005, and he had never owned nor driven a Chevy Lumina.
In addition, defendant testified that, although he was a resident of the motel room where the first two purchases occurred, many other people also would stay in the motel room at times. He also testified that he was not in the motel room on December 14, 2005, but instead had been in Pennsylvania for the first three weeks of December. Although he had not then given up the room, defendant stated that he did allow friends to stay there. He denied ever selling cocaine on the dates in question.
The jury found defendant guilty of the offenses charged in Indictment No. 05-04-0368. He later pled guilty, pursuant to an agreement, to one count contained in Indictment No. 05-06-0542, i.e., third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). And defendant also pled guilty to violating the conditions of a probationary term imposed on a prior conviction of obstruction of justice, N.J.S.A. 2C:29-1(a), arising from Indictment No. 04-08-0585. After all appropriate mergers of the convictions in Indictment No. 05-04-0368, the trial judge sentenced defendant to a four-year prison term. Defendant was also sentenced to a concurrent three-year term for the violation of probation. Additionally, the trial judge imposed a three-year prison term regarding the CDS conviction in Indictment No. 05-06-0542 and ordered that it run consecutively to the term imposed on Indictment No. 05-04-0368.
In his appeal, defendant makes the following arguments regarding his conviction and sentence in Indictment No. 05-04-0368*fn3
I. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER EXPRESSLY INFORMING THE JURY THAT HE RECEIVED INFORMATION FROM A RELIABLE CONFIDENTIAL INFORMANT THAT THE DEFENDANT HAD BEEN SELLING NARCOTICS (PARTIALLY RAISED BELOW).
II. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A STATE'S WITNESS REFERENCING A SEARCH WARRANT FOR THE PREMISES WHERE THE DEFENDANT WAS RESIDING (NOT RAISED BELOW).
III. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO PRECLUDE THE ADMISSIBILITY OF THE PHOTOGRAPH IDENTIFICATION TESTIMONY RELATING TO THE DEFENDANT BY DETECTIVE INGRAM.
IV. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We find insufficient merit in Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reject the arguments contained in Points I and III, but remand for resentencing, as urged in Point IV, for the following reasons.
Defendant argues that he was denied his right to a fair trial because Detective Ingram testified that he received information from a reliable confidential informant that defendant was selling narcotics at the motel where Ingram made two of the buys in question. Specifically, defendant complains of the following portion of Ingram's testimony:
Q: Okay. And why did you go [to the motel room]?
A: We had information from a reliable confidential informant that [defendant] was selling . . .
Defense counsel immediately objected before Ingram could complete his answer, and the following occurred at the ensuing sidebar conference:
THE COURT: I was going to say I'll sustain the objection. You want me to strike anything he said?
[DEFENSE COUNSEL]: Yes, strike -- I may move at a later time, depending on how his testimony goes, I'm just concerned that this [has] already tainted the jury too much.
Nothing more was then said, and the judge immediately gave the following instruction to the jury:
Ladies and Gentlemen, I'm going to sustain the objection. I'm going to ask you to disregard the Detective's statement regarding about what somebody else told him. That would be hearsay and that's not permissible. So I'm going to ask you to disregard that testimony with respect to anything he might have said in that regard.
Defendant asserted no further objection, nor did he then seek any other cautionary instruction, or move for a mistrial.
The subject of the confidential informant testimony was revisited at the charge conference. Defense counsel suggested that the trial judge instruct the jury not to consider whether there was any other source of information directing the police to focus on defendant during their investigation. The prosecutor objected because he believed that "the instruction [had] already been given" and that "to further highlight [the] issue may well create more of a problem . . . ." The trial judge concluded that he would simply advise the jury that any evidence he had stricken during trial was to be disregarded. During his charge, the judge explained the point to the jury members in the following way:
Any testimony that I may have had occasion to strike is not evidence and shall not enter into your final deliberations. It must be disregarded by you. Now you'll recall that I did, in fact, give you such an instruction earlier in the trial. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations.
Defendant now argues that this charge was insufficient because "the jury could not possibly have ignored the clearly inadmissible and highly inflammatory testimony gratuitously volunteered by the officer."
A curative instruction is one intended to ameliorate potential prejudice arising from the jury's exposure to inadmissible evidence. State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002). "Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968). Thus, the determination of whether "inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984). "The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647.
The trial judge gave a proper curative instruction at the time of the "gratuitously volunteered" testimony and, again, during the jury charge. As we have observed, the offending testimony was short and was halted before Detective Ingram could finish his sentence. In addition, the judge immediately instructed the jury to disregard this hearsay statement. And, finally, the judge reminded the jurors in his final instructions that they were obligated to disregard the hearsay statement. In assuming, as we must, that the jury followed the judge's instructions, State v. Feaster, 156 N.J. 1, 65 (1998), we are satisfied that any prejudice that may have resulted from Ingram's brief reference to having received information from a confidential informant was cured by the forceful actions taken by the trial judge.
Defendant argues that that trial judge erred in permitting evidence of Detective Ingram's photographic identification of him. Defendant contends that the identification procedure was not only impermissibly suggestive, but also resulted in an inherently unreliable identification.
The record reveals that, prior to trial, the judge conducted a Wade*fn4 hearing. At that time, Detective Ingram testified that, on December 14, 2004, he was employed in an undercover capacity and purchased CDS from defendant. He described the seller as being six-foot-three-inches tall and weighing 230 pounds; he also indicated that the seller had corn rows and was wearing a zip-up hooded sweatshirt and Timberland boots. He testified that he was able to closely view defendant and, indeed, shook hands with him after the drug sale. When Ingram thereafter met with Detective Landi to turn over the bags and provide a description of defendant, Landi showed him a photograph of defendant. The photograph had the name "Steven Lawhorn" written on the front. Ingram also testified that he made two more controlled buys from defendant, one on January 7, 2005 and one on January 12, 2005, at which time he again identified defendant as the seller without any further prompting from photographs.
In denying defendant's motion to suppress evidence regarding the photograph that Landi had shown Ingram on December 14, 2004, the judge noted that Ingram was a trained police officer who had made approximately 500 undercover buys. He further explained:
It seems to me that [defendant's] argument would certainly be better if this photograph was shown to the Detective after the third buy where it was suggested there was some area of suggestibility, but the Officer clearly testified that he identified this defendant, whatever name he may use, as the person from whom he purchased cocaine. He was shown the photograph, he identified the individual from whom he made the buy on December 14th as the person in the photograph and made two other buys from the same individual on two subsequent occasions.
It seems to me, taking the totality of the circumstances, this witness was not misled in any fashion by this photograph. As I indicated, he was not impermissibly led to make that determination. I don't see where there is any irreparable harm with respect to the identification. The issue becomes significantly different should there [have] been multiple buys and then the photograph being shown perhaps.
The test for determining whether an identification procedure is not "'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,'" State v. Madison, 109 N.J. 223, 225 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968)), is two-pronged. The first prong concerns whether the procedure employed was "impermissibly suggestive." State v. Madison, supra, 109 N.J. at 232. If so, it must be considered whether there was a "very substantial likelihood of irreparable misidentification." Ibid. (citation and internal quotations omitted). "The validity of a claim that a pretrial identification is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a violation of due process must be evaluated upon the totality of the circumstances surrounding the confrontation." State v. Mustacchio, 109 N.J. Super. 257, 263 (App. Div.) (citations omitted), aff'd, 57 N.J. 265 (1970).
Here, even assuming that Detective Ingram's examination of a single photograph of defendant, embossed with defendant's name, was inherently suggestive, we are satisfied that the totality of the evidence supported the trial judge's findings regarding the reliability of the identification. That is, to determine whether an identification is reliable a judge must consider and weigh "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." State v. Clausell, 121 N.J. 298, 326 (1990) (citations and internal quotations omitted).
The circumstances at hand bear similarities to what occurred in State v. Little, 296 N.J. Super. 573 (App. Div.), certif. denied, 150 N.J. 25 (1997), and suggest the same outcome. There, defendant was arrested at the conclusion of an undercover operation. A detective identified the defendant by selecting him from a group of photographs of all the persons found during the execution of the search warrant. The trial judge admitted the photograph. Id. at 577. On appeal, defendant argued that the out-of-court identification was impermissibly suggestive and tainted the detective's in-court identification. In finding that, in view of the totality of the circumstances, the record reflected the reliability of the identification independent of the photographic identification, we said:
There can be no dispute that a trained undercover police officer has heightened awareness of the need for proper identification of persons who engage in drug purveyance. [The detective] was a trained and experienced illicit-drug-activity investigator. As an undercover officer, he was not only trained to be observant but also had a strong incentive to be observant. [The detective] had significant opportunity to observe defendant close up during the very early evening hours of the July date in question. [Id. at 580.]
In the matter at hand, the trial judge similarly weighed the appropriate factors for determining reliability in concluding that Detective Ingram, an experienced officer, had the opportunity to closely observe defendant in order to make the proper identification. Ingram also made two later purchases from defendant, which further demonstrated the reliability of the identification. In light of the certainty expressed by Detective Ingram in identifying defendant as the seller of CDS on all three occasions, the judge's determination that the identification was reliable is entitled to our deference.
At sentencing, defendant argued that a proper weighing of the aggravating and mitigating factors justified a three-year prison term, whereas the State argued that a five-year term was appropriate. In considering the circumstances, the judge found that four aggravating factors had been presented: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of the defendant's prior criminal record and the seriousness of the offense of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); the need for deterring defendant and others, N.J.S.A. 2C:44-1(a)(9); and the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, N.J.S.A. 2C:44-1(a)(11). The judge also found in mitigation that defendant had no history of prior criminal activity before the commission of the offenses charged, citing N.J.S.A. 2C:44-1(b)(7), a factor which he gave only "slight weight." Concluding that the aggravating factors preponderated over the mitigating factor, the judge imposed a four-year term.
Defendant contends that only the need to deter, N.J.S.A. 2C:44-1(a)(9), was an applicable aggravating factor. Defendant also argues that the mitigating factor applied by the judge, N.J.S.A. 2C:44-1(b)(7), should have been given more than slight weight, that the judge should have found an additional mitigating factor -- claiming that defendant did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2) -- and that the sentence was otherwise excessive.
We conclude that defendant is correct in arguing that the judge should not have applied the cost of doing business aggravating factor, N.J.S.A. 2C:44-1(a)(11). This factor has application only when determining whether a custodial term should or should not be imposed. See State v. Dalziel, 182 N.J. 494, 502 (2005). Here, even though both defendant and the State recognized that a custodial term would be imposed, the judge not only applied this factor but indicated during sentencing that he gave it "great weight." Accordingly, we conclude that defendant is entitled to be resentenced at which time the judge should not apply the aggravating factor contained in N.J.S.A. 2C:44-1(a)(11). And, as a result, we need not consider defendant's other arguments regarding the application of other aggravating factors and the judge's decision not to apply other mitigating factors, which the judge is free to reconsider at the time of re-sentencing.
We affirm the convictions, but remand for re-sentencing in conformity with this opinion. We do not retain jurisdiction.