October 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BERNARD A. VALENTIN, A/K/A VALENTINE, A/K/A BERNARDO VALENTIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-09-01921.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2009
Before Judges Yannotti and Chambers.
Defendant Bernard Valentin was tried before a jury and found guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3); and third-degree conspiracy to distribute a CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3). He was sentenced to four years of incarceration. Defendant appeals from the judgment of conviction entered on January 29, 2007. For the reasons that follow, we affirm.
We briefly summarize the evidence presented at defendant's trial, which took place in May of 2006. On June 17, 2005, Detective Lieutenant James Hunt (Hunt) of the Neptune Township Police Department was assigned with other officers to the "Quality of Life Unit," a group of plain-clothed officers that deals with street-level narcotics offenses and other criminal conduct that affects the quality of life in the Township. At approximately 5:45 p.m., Hunt arrested William Manzer (Manzer) for possession of heroin and marijuana. Manzer told Hunt that he had previously run afoul of the law and did not want to go back to jail.
Manzer agreed to work with the police and identify a drug dealer. Manzer said that he could order heroin from a person he knew by the name of "Knowledge." As he was speaking with Hunt, Manzer received a telephone call from "Knowledge." Manzer told "Knowledge" that he wanted to purchase heroin. Manzer agreed to meet "Knowledge" behind the credit union on Wayside Road in the western section of the Township.
Hunt, Patrolmen Kirschner (Kirschner) and Manzer drove in an unmarked vehicle to the pre-arranged location. They were sitting in the car in a parking lot at Wayside Road and Rhodes Terrace. Lieutenant Joseph Burst (Burst) set up surveillance of the area. Manzer called "Knowledge" and told him that he had arrived at the location. Manzer said that he wanted to purchase one brick*fn1 of heroin and they agreed upon a price of $350.
"Knowledge" told Manzer that he did not have the drugs but said that "they were coming." Officer Philip Seidle (Seidle) radioed Hunt and told him that he observed a black male, who he identified as Gary Spraulding (Spraulding), walking towards Rhodes Terrace. Seidle said that Spraulding was wearing jeans and a white T-shirt. Manzer called "Knowledge" and "Knowledge" called back saying "come up, it's going to be here."
Hunt testified that he observed Spraulding come to the corner of Sherwood Avenue and Rhodes Terrace. In Hunt's presence, Manzer called "Knowledge." Hunt observed Spraulding pick up a cell phone, answer it and engage in a conversation with Manzer. Hunt heard Manzer ask Spraulding if he had the heroin. Spraulding said that he did not but he expected a delivery. Spraulding told Manzer that he should "come up" and they would meet at the end of Rhodes Terrace.
According to Hunt, a few minutes went by. He then observed Spraulding walk down the street to the end of Rhodes Terrace. Two minutes later, a blue Jeep came north on Wayside Road, turned left onto Rhodes Terrace, drove all the way to the end of Rhodes Terrace, and stopped next to Spraulding. Hunt said that it was about 6:00 p.m. or 6:30 p.m. He stated that the weather was clear and "[i]t was still light out."
Hunt testified that he observed Spraulding walk up to the driver's side window of the Jeep. Spraulding leaned into the window briefly, stepped off and the Jeep began to drive away. Hunt said that he believed he had observed a drug transaction and he directed Burst to stop the Jeep. Hunt also directed Seidle and Patrolman D'Amico (D'Amico) to stop Spraulding. Hunt exited the vehicle and Kirschner remained with Manzer.
Seidle and D'Amico followed Spraulding. They passed the Jeep. Seidle observed the driver. Seidle testified that he had the impression the driver recognized the police "because he had, you know, a wide-eyed look on his face, and he immediately went on down to his phone." Seidle and D'Amico stopped their vehicle. Seidle said that he observed Spraulding look over his shoulder. When Spraulding saw the officers, he began to jog. He threw an object over a fence into a lot. The officers stopped Spraulding and arrested him.
Seidle radioed Hunt and told him that he saw Spraulding discard an object into the lot. Hunt approached and observed two dogs blocking the area. Seidle pointed out the spot where Spraulding tossed the item. At Hunt's request, the owner removed the dogs so that the police could look inside the lot. Hunt located a block of suspected heroin on the grass inside the fence. Tests conducted by the State Police confirmed that the recovered object contained heroin.
Burst drove his marked police vehicle and followed the Jeep. The Jeep stopped in front of a residence and defendant got out. Burst exited his vehicle, questioned defendant and, when back-up officers arrived, arrested him. Defendant was found in possession of $1,499.
The police obtained records for Manzer's, Spraulding's and defendant's cell phones. Among other things, the records revealed that Spraulding had attempted to call defendant at 5:51 p.m., which was one minute after Manzer called Spraulding and said he wanted to purchase heroin. The records also revealed that Spraulding had called Manzer's phone at 6:20 p.m. and 7:01 p.m. These calls coincided with Spraulding's calls to defendant's phone.
Spraulding testified that he was known as "Knowledge." He said his interaction with Manzer was a coincidence and a mistake. Spraulding further testified that he had spoken to Manzer but the conversation was about a party. Manzer testified pursuant to a subpoena. He stated that the police had forced him to set up the drug purchase. Manzer pled guilty as a result of his arrest and he was sentenced to three years of probation.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL.
THE STATE'S EVIDENCE WAS INSUFFICIENT TO ALLOW A REASONABLE JURY TO RETURN A VERDICT OF GUILTY AGAINST APPELLANT BERNARD VALENTIN.
DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
DEFENDANT'S SENTENCE WAS EXCESSIVE.
Defendant first argues that the trial court erred by denying his motion for a new trial because during jury selection, Juror No. 1 failed to disclose the fact that she was acquainted with an assistant prosecutor in the Monmouth County Prosecutor's Office (MCPO), and because the court did not question the jurors in order to determine whether defendant's right to a fair and impartial jury had been compromised.
The following facts are pertinent to our decision on this issue. After the members of the jury had been selected, but before they were sworn, the court asked the prospective jurors if there was any reason that they could not sit on the case or be fair and impartial. None of the jurors responded.
As the trial came to an end, Assistant Prosecutor Kathleen Bycsek (Bycsek) entered the court room and sat in the back to observe the proceedings. Bycsek then informed Assistant Prosecutor Barry J. Serebnick (Serebnick), the attorney who was trying the case, that she knew Juror No. 1. Serebnick brought this information to the court's attention, outside of the presence of the jury.
At sidebar, defendant's counsel asked the court to question the juror about how she knew Bycsek and why she had not disclosed this information during jury selection. The trial court denied the application. Thereafter, Juror No. 1 was randomly selected as one of the two alternates and did not participate in the verdict.
Defendant filed a post-trial motion for a new trial and argued that his right to a fair trial had been compromised because Juror No. 1 had not disclosed the fact that she knew Bycsek. In response to defendant's motion, Bycsek filed a certification with the court, in which she stated that she knew Juror No. 1 because they both attended their children's baseball games. Bycsek stated that she did not know the juror prior to the spring of 2006. Bycsek said that she engaged in a friendly conversation with Juror No. 1 several weeks prior to the trial and told her that she was employed by the MCPO as an assistant prosecutor.
The trial court denied defendant's motion for a new trial and placed its decision on the record on September 15, 2006. The court noted that, when it questioned the prospective jurors during jury selection, it asked whether any juror was a close friend or relative of anyone in law enforcement. The court did not ask the prospective jurors whether they were acquainted with anyone in the MCPO. The court found that in responding to these questions, Juror No. 1 was not obligated to inform the court that she knew Bycsek because they were only casual acquaintances.
In addition, the court noted that, when this information was brought to its attention, it chose not to question Juror No. 1 concerning the matter because the court believed it was inappropriate to do so at that stage of the proceedings. The court stated that even if it had interviewed the juror, it would not have affected the outcome of the case because the juror was selected as an alternate and did not participate in the verdict.
The trial court may grant a defendant a new trial "if required in the interest of justice." R. 3:20-1. Here, the trial court correctly determined that a new trial was not warranted. As the court correctly found, the questions the court asked the prospective jurors during voir dire did not require Juror No. 1 to disclose that she was acquainted with Bycsek. The jury selection process was not compromised.
Defendant argues, however, that if the juror had disclosed the information during jury selection, his attorney would have exercised a peremptory challenge, excused the juror and another juror would have been chosen. Defendant says that the replacement juror might have participated in the verdict and voted to find defendant not guilty. We are not persuaded by these arguments. Defense counsel did not object to the court's questions, and did not ask the court to pose additional questions to the prospective jurors. Moreover, even assuming that Juror No. 1 would have been excused on a peremptory challenge, defendant's assertion that the juror who took her place may have voted to acquit is pure speculation.
Defendant further argues that the trial court erred by failing to interview Juror No. 1 to ensure that she could serve impartially. Prejudice to the defendant will be presumed "'[w]hen the integrity of the jury selection process has been compromised.'" State v. Loftin, 191 N.J. 172, 191 (2007) (quoting State v. Tyler, 176 N.J. 171, 183 (2003)). If that is the case, the fact that the juror ultimately did not deliberate is not dispositive. Id. at 190. The test is whether the juror's presence on the panel "'had the capacity'" to compromise defendant's right to a trial before a fair and impartial jury. Ibid. (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).
In Loftin, the trial court was informed during the guilt-phase of a capital murder case that one of the jurors made a comment to a fellow worker indicating that he had predetermined the defendant's guilt, as well as a racially-insensitive remark. Id. at 183. The trial court questioned the juror and determined that "he harbored no predisposition regarding defendant's guilt or innocence." Id. at 185. The court did not voir dire the remaining jurors to determine whether the juror made similar comments to them. Ibid. The court let the juror remain on the panel but, at the conclusion of the trial, ordered that he be designated an alternate. Ibid.
In Loftin, the Court held that the juror should have been disqualified from further service on the jury after the court learned his statements. Id. at 193. The Court further held that, under the circumstances, prejudice to the defendant was presumed. Ibid. The Court concluded that the presumption of prejudice could not be overcome because the trial court had not questioned the other jurors to determine whether the juror had expressed any predisposition or bias to them and, if so, whether any juror was influenced by such statements. Id. at 195.
In this case, however, the integrity of the jury selection process was not compromised. Juror No. 1 never made any statement indicating that she was biased and could not decide the case impartially. The juror's bias was not established merely because she met and had spoken with Bycsek at their children's baseball games. Thus, a presumption of prejudice did not arise and the trial court was not required to question Juror No. 1 regarding her relationship with Bycsek, or question the other jurors to determine whether their ability to render an impartial verdict had been compromised by Juror No. 1's participation in the case.
Next, defendant argues that the trial court erred by denying his motion for a judgment of acquittal.
Rule 3:18-1 provides in pertinent part that, at the close of the State's case, the trial court may enter a judgment of acquittal "of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." In ruling on the motion, the trial court must determine "'whether, viewing the State's evidence in its entirety... and giving the State the benefit of all its favorable testimony as well as all of the favorable inference which reasonably could be drawn therefrom, a reasonable jury could find guilt... beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967).
Defendant argues that the State failed to present sufficient evidence to establish that he was in possession of any CDS or handed any CDS to Spraulding. Defendant asserts that his interaction with Spraulding took only ten to fifteen seconds. He maintains that there was insufficient circumstantial evidence from which a rational jury could find him guilty beyond a reasonable doubt. Again, we disagree.
Here, the State did not present any direct evidence showing that defendant possessed the heroin but it presented sufficient circumstantial evidence from which an inference of possession could reasonably be drawn. The evidence allowed the jury to find that Spraulding was not in possession of CDS when he arrived at the corner of Sherwood Avenue and Rhodes Terrace, but he possessed CDS after defendant drove up, stopped his vehicle and Spraulding leaned into defendant's vehicle. The evidence also allowed the jury to find beyond a reasonable doubt that defendant possessed the heroin with the intent to distribute the same to Spraulding and others.
In addition, the State's evidence was sufficient to allow the jury to find beyond a reasonable doubt that defendant conspired with Spraulding to sell the heroin to Manzer. This evidence included the phone records showing that before defendant arrived on the scene, there were communications between his phone and Spraulding's phones. Those communications occurred at about the time when Manzer called to Spraulding and said that he wanted to purchase heroin.
Defendant additionally argues that the State failed to conduct a competent investigation and, had it done so, it would have obtained evidence that would exonerate him. Defendant contends that the State erred by failing to take fingerprints from the drug package and record the telephone conversations between the persons involved in the drug transaction. Defendant contends that the State's failure to obtain this information is tantamount to the suppression of material evidence favorable to his defense, in contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963).
Again, we disagree. Here, the State has not withheld any material evidence. Although the State did not recover fingerprints from the discarded package of heroin, it provided a reasonable explanation for the lack of fingerprint evidence. On direct examination, Hunt stated that the heroin was packaged in a "magazine wrapper." On cross examination, Hunt agreed that "magazine packaging" is a slick surface and it is "very hard to get fingerprints off of something like that."
The State also provided a reasonable explanation for failing to record the phone conversations between Manzer and Spraulding. The testimony presented at trial indicated that the phone calls were made in an impromptu manner, immediately after Manzer's arrest. As the record shows, the officers did not have sufficient time to obtain authorization to record the phone calls.
We therefore conclude that defendant has not shown that the State improperly suppressed evidence material to his defense.
Defendant also argues that his sentence is excessive. Here, the trial court found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). By way of mitigation, the court noted that defendant is a college graduate and "has a family that stands behind him." The court found that the aggravating factors outweigh the mitigating factors and imposed three, concurrent, flat four-year sentences.
Notwithstanding defendant's arguments to the contrary, we are satisfied that the record fully supports the court's findings of aggravating factors. In this regard, we note that defendant has six prior municipal court convictions and a prior Superior Court conviction for theft by unlawful taking or disposition of movable property, contrary to N.J.S.A. 2C:20-3a.
In short, we are convinced that the sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).