January 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY SPRAULDING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-09-1921.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Gary Spraulding was charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count two); third-degree conspiracy, N.J.S.A. 2C:5-2 (count three); fourth- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (fourth count); and second-degree possession of a weapon in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(c) (fifth count). He was tried, along with co-defendant Bernard Valentin, and convicted on all counts.
At sentencing, the trial judge merged counts one and two, and sentenced defendant to a four-year prison term on count two, a four-year term on count three, a one-year term on count four, and a six-year term on count five. The prison terms on counts three and four were ordered to run concurrently with the term imposed on count two, and the six-year term imposed on count five was ordered to run consecutively to the term imposed on count two.
Defendant appealed, raising the following arguments for our consideration:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF CHARACTER EVIDENCE SHOWING THAT THE DEFENDANT IS A "DRUG DEALER" (Not Raised Below).
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION THAT JURORS SHOULD CONSIDER CRIMINAL CONVICTION EVIDENCE TO IMPEACH ONLY THE DEFENDANT'S CREDIBILITY, EVEN THOUGH THE STATE'S KEY WITNESS ALSO HAD CRIMINAL CONVICTIONS (Not Raised Below).
III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S EXPERT WITNESS ON NARCOTICS RENDERED OPINIONS, NOT LIMITED TO HYPOTHETICAL FACTS BUT BASED SPECIFICALLY ON THE ACTIONS OF THE DEFENDANT AS DETAILED IN THE POLICE REPORTS (Not Raised Below).
IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EXPERT OPINION EVIDENCE IN FINGERPRINT ANALYSIS WITHOUT A PROPER FOUNDATION (Not Raised Below).
V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL HEARSAY EVIDENCE.
VI. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT ERRONEOUSLY ALLOWED THE JURORS TO DETERMINE FOR THEMSELVES WHAT CONSTITUTES AN ATTEMPT TO COMMIT A DRUG CRIME WITHOUT ANY EXPLANATION OR LEGAL GUIDANCE (Not Raised Below).
VII. THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES BEYOND A REASONABLE DOUBT.
VIII. THE CONSPIRACY CONVICTION MUST MERGE WITH THE SUBSTANTIVE CRIME CONVICTION.
IX. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.
We agree, and the State concedes, that defendant's argument in Point VIII is well-taken; we will remand for an amendment of the judgment of conviction that reflects an appropriate merger. We find insufficient merit in defendant's remaining arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and add only the following comments regarding Points I, II, and III.
In Point I, defendant contends that his constitutional right to a fair trial was prejudiced by testimony provided by William Manser, a witness for the State. Manser testified that in order to minimize his chances of going to jail following his own arrest, he offered to find for the police someone "with more drugs than [he] had on [him]," and telephoned defendant, whom he referred to as "a friend . . ., a drug dealer" (emphasis added). Defense counsel did not object, but now, on appeal, argues that the reference to him as a "drug dealer" impermissibly impeached his character. Although the description of defendant as a "drug dealer" was inadmissible, defendant did not object and, thus, prevented the trial judge from striking that testimony or instructing the jury to disregard it. See State v. Frost, 158 N.J. 76, 84 (1999); State v. Macon, 57 N.J. 325, 333 (1971). As a result, we are limited to determining whether the admission of this testimony was "clearly capable of producing an unjust result." R. 2:10-2. See State v. Castagna, 187 N.J. 293, 312 (2006); State v. Torres, 183 N.J. 554, 564 (2005). Because the reference to defendant as a drug dealer was brief and hardly prejudicial in light of other evidence that supported the accuracy of that description, which the jury obviously credited, we find no error in the trial judge's failure to sua sponte strike that testimony or his failure to provide an instruction to the jury that defendant never requested.
In Point II, defendant complains that the judge only instructed the jury regarding the impact of prior criminal convictions on "the credibility of the defendant" and failed to instruct the jury that Manser's prior convictions also could be weighed in determining his credibility:
Remember when Mr. Spraulding took the stand [his attorney] asked him about a prior criminal conviction or criminal convictions, plural. You have heard that Mr. Spraulding has previously been convicted of several crimes. This evidence may be used in determining the credibility or believability of Mr. Spraulding's testimony. You may not conclude that he committed the crime charged in this case or is more likely to have committed the crime charged simply because he committed a crime on another occasion.
A jury has a right to consider whether a person who has previously failed to comply with society's rules as demonstrated through a criminal conviction would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of a crime. You can consider in determining this issue the nature and degree of the prior convictions and when they occurred. My recollection [is that] he had two theft charges in 1999 and 2001, something like that. Your recollection governs.
Our law permits a conviction to be received in evidence only for the purpose of affecting the credibility of the defendant, and for, not for any other purpose. You are not, however, obligated to change your opinion as to the credibility of Mr. Spraulding simply because [of] prior convictions. You may consider such evidence along with all of the factors we previously discussed in determining the credibility of the defendant.
As can be readily seen, the judge's instructions regarding the relationship between defendant's prior criminal convictions and defendant's credibility were correct. Defendant's objection, however, is that the instruction referred only to defendant and not also to Manser, who testified he had previously been convicted of crimes.
Defendant correctly claims that the jury was permitted to consider Manser's prior convictions in determining whether he was a credible witness. And defendant is correct that the trial judge neglected to mention Manser during that part of the charge quoted above. But the judge did provide specific instructions regarding Manser's testimony and how the jury could go about considering his credibility:
And during Mr. Manser, William Manser's testimony you have heard that he received an advantage or a benefit as a result of his testimony in this trial and his volunteering to work with the Neptune Township Police. You'll recall the testimony in this regard, specifically the police recommendation of favorable consideration in regard to the charges pending against him arising out of his willingness to testify and to work with the police.
The fact that a witness has been given or promised a benefit or that the witness hopes to receive a benefit does not disqualify him from testifying. You should, however, carefully scrutinize the testimony of that witness in light of any benefit he received or has been promised or which may have, -- or of which may have some hope which might have an effect upon his testimony. There may be a question as to why Mr. Manser testified and whether he expected the State to help him with respect to any expectation of a favor for the giving of his testimony. And remember he testified that he was charged with possession of a controlled dangerous substance and he got probation.
You may consider whether the interest of Mr. Manser in obtaining these promises and recommendations caused him to misstate any of the facts. The determination of the witness' credibility is your exclusive function. Once again, you are the sole exclusive judges of the facts. And you may believe all of his testimony, some of his testimony, part of his testimony or none of it.
We are satisfied, particularly in light of defendant's failure to object, that the jury was amply instructed as to the many things it could weigh in determining whether Manser was a credible witness, and that the jury understood that Manser's prior convictions, one of which was specifically referred to in that part of the charge relating solely to Manser, could be used in the jury's assessment of his credibility.
Indeed, we would further observe that the judge's omission of an instruction regarding Manser's prior convictions could not have harmed defendant. This instruction would have advised the jury as to the limits to which evidence of prior convictions may be used. By omitting Manser from that part of the charge, the judge, in essence, placed no limitation on the extent to which the jury could weigh the significance of Manser's prior convictions. If anything, the omission of which defendant now complains gave him an advantage, not a disadvantage.
For all these reasons, we are not persuaded that the judge's omission of a reference to Manser when describing the use of prior convictions for assessing defendant's credibility was "clearly capable of producing an unjust result." R. 2:10-2.
In Point III, defendant contends that the State's expert was permitted to testify beyond the scope of a hypothetical question contrary to the holding in State v. Odom, 116 N.J. 65, 82 (1989). The record reveals, however, that the prosecutor's examination of the expert fully conformed to the limitations imposed by Odom, as the prosecutor had the witness refer to the actors in his hypothetical only as A and B. What defendant complains of now is the fact that his attorney, to some degree, and his co-defendant's attorney, to a far greater degree, invited the expert to testify beyond the parameters of the hypothetical. That is, defendant's attorney asked the expert the following questions and received the following answers:
Q: Where was the meeting place to be between A and B?
A: I was not at the location. I read reports, and gave my opinion based on those reports.
Q: Do you know in this particular case if there was ever a meeting between A and B?
A: Based on my recollection, I believe there was a meeting. I don't have the reports in front of me, sir.
Co-defendant thereafter asked the expert to venture even further away from the hypothetical:
Q: So let's put aside A, B and C. We've got Mr. Spraulding and we've got Mr. Valentin. You read the reports with their names in it, correct?
A: That's correct.
Q: And you understand that there was no observation made whatsoever of Mr. Valentin passing anything off to Mr. Spraulding, correct?
From that point, until the completion of his cross-examination, co-defendant's attorney questioned the expert regarding the specifics of the case, fully departing from the hypothetical and the limitations placed on expert testimony by Odom.
By posing questions designed to elicit from the expert some specific facts about the alleged offenses, and by failing to object to co-defendant's wholesale rejection of the hypothetical, defendant cannot now be heard to complain. If the cross-examination of counsel for both defendants elicited evidence that would have otherwise been barred by Odom, it was a circumstance that was invited. See State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 74 (1974).
Finally, as noted earlier, defendant has argued and the State concedes that the conviction for conspiracy should have merged with the conviction for possession of CDS with the intent to distribute for sentencing purposes. See State v. Hardison, 99 N.J. 379, 386 (1985); State v. Laboy, 270 N.J. Super. 296, 298 n.2 (App. Div. 1994).
With the exception of our remand for the amending of the judgment of conviction on the merger point discussed above, we affirm. We do not retain jurisdiction.
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