January 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL MAJETTE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-02-0188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Lintner, Graves and Alvarez.
Defendant, Michael Majette, was found guilty by a jury of possession of cocaine N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6 (Count One); distribution of cocaine, N.J.S.A. 2C:35-5a(1), b(3) and N.J.S.A. 2C:2-6 (Counts Two and Four); and distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a, and N.J.S.A. 2C:2-6 (Counts Three and Five). Following appropriate mergers, defendant was sentenced to a mandatory extended term, N.J.S.A. 2C:43-6f, of nine years with a three-year parole ineligibility on the Count Three conviction. A concurrent five-year term was imposed on the Count Five conviction. Defendant appeals and we affirm.
At approximately 5:00 p.m. on June 14, 2000, Detective Jeffrey Robinson, a three-year member of the Narcotics Division of the Paterson Police Department, began task-force surveillance in a high narcotics trafficking area of Paterson. Robinson, dressed in plain clothes and sitting in the back of a parked Jeep Wrangler, was observing the intersection of Hamilton Avenue and Lake Street. In addition to functioning as a "surveillance man," Robinson's duty was to inform, via police radio, the nearby "scoop team," or arrest teams, to stop individuals that he observed engaging in what he believed to be narcotics transactions.
Over the course of his observations, Robinson saw three hand-to-hand transactions. The first was at approximately 5:10 p.m. and involved a Hispanic man. Robinson watched the Hispanic man approach the intersection and speak with a black male, later identified as Jarel Maggette.*fn1 The two engaged in a brief conversation and then Jarel walked approximately ten to fifteen feet to a man, later identified as defendant. Jarel and defendant spoke for approximately two to three seconds and then defendant reached into his pocket and handed Jarel a number of small items. Jarel returned to the Hispanic male, who accepted the objects in exchange for paper currency. After the exchange, Jarel returned to defendant and handed him the paper currency that was given to him by the Hispanic male.
Robinson believed, based upon his experience, that he had observed a narcotic purchase. Robinson provided the scoop teams with a description of the Hispanic man. The team, however, was unable to apprehend him.
The next observed transaction occurred at approximately 5:20 p.m. Robinson saw a black female, later identified as Angela Joe, pull up in a black Toyota. She exited her vehicle and walked over to Jarel. Jarel and Joe engaged in a brief conversation, after which Jarel while looking in his "right clenched hand," appeared to be "counting some items which he handed to . . . Joe." Joe then gave Jarel some paper currency, and got into her car and drove away. Jarel then walked over to defendant and handed him the money. The entire exchange took place approximately seven feet from Robinson.
Robinson alerted the scoop teams. Joe was stopped by two members of the scoop team in an unmarked Ford Taurus. They showed her their badges and relayed the observations made by Robinson. Joe responded by surrendering two small baggies of crack cocaine. The two bags were red in color and had the words "stay high" written on them.
The final transaction occurred at approximately 5:55 p.m. Robinson observed a black male, later identified as Melvin Robinson (Melvin),*fn2 walk up to Jarel. They engaged in a very brief conversation. Defendant was approximately five feet from Jarel and Melvin. After the conversation, "Jarel Maggette . . . reach[ed] into his right pants pocket, hand[ed] . . . [Melvin] an item in exchange for what appeared to be money."
At that point, Robinson instructed the scoop teams to arrest all the involved parties. Defendant, Jarel, and Melvin were arrested directly in front of 214 Hamilton Ave. Robinson did not assist in the arrest or get out of the Jeep at the time of the arrest, so as not to compromise his undercover use of the vehicle.
At the time of their arrest, Melvin had in his possession one red bag of crack cocaine marked with the words "stay high," identical to the bag recovered from Joe. $22, consisting of 1 ten-dollar bill and 12 one-dollar bills, was found on Jarel, and defendant had $113 on his person consisting of 103 one-dollar bills and 2 five-dollar bills.
Jarel testified at trial. He arrived at Lake and Hamilton on the afternoon of his arrest to hangout and mingle. According to Jarel, defendant arrived later that afternoon. Jarel denied selling narcotics to any of the apprehended buyers, and testified that Joe spoke to and purchased narcotics from another individual lingering nearby, who was more commonly known as "Big Marv." By the time Jarel was arrested, Big Marv had left the scene and had not been apprehended by the officers. Jarel conceded that he may have handed defendant money, however, he claimed that he was giving defendant money he owed him, approximately $10.
On appeal, defendant raises the following contentions:
I. THE TRIAL COURT ERRED IN ALLOWING HIGHLY PREJUDICIAL TESTIMONY ABOUT THE DEFENDANT'S EARLIER ENCOUNTER WITH THE UNIDENTIFIED HISPANIC MALE -- WHICH ENCOUNTER DID NOT RESULT IN ANY CRIMINAL CHARGE AND FOR WHICH THERE WAS NO EVIDENCE OF WRONGDOING --BECAUSE SUCH TESTIMONY UNFAIRLY PORTRAYED DEFENDANT AS A LIKELY DRUG DEALER, MAKING THE JURY MORE LIKELY TO CONVICT HIM FOR CDS POSSESSION AND DISTRIBUTION IN CONNECTION WITH THE [SUBSEQUENT] ENCOUNTERS.
A. ALL TESTIMONY CONCERNING THE HISPANIC MALE ENCOUNTER SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 403, BECAUSE SUCH TESTIMONY PRESENTED A HIGH RISK OF UNDUE PREJUDICE, ESPECIALLY WHERE THE ENCOUNTER WAS PRESENTED BY THE STATE (WITHOUT PROOF) AS A "NARCOTICS TRANSACTION."
B. THE TESTIMONY CONCERNING THE HISPANIC MALE CONSTITUTED "OTHER BAD ACT[S]" EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 404(b).
C. BASED ON THE JURY'S OWN QUESTION, THE ERRONEOUS ADMISSION OF TESTIMONY CONCERNING THE HISPANIC MALE ENCOUNTER WAS NOT "HARMLESS," BUT CLEARLY INFLUENCED THE JURY'S DECISION TO FIND DEFENDANT GUILTY OF CDS POSSESSION AND DISTRIBUTION.
II. THE TRIAL COURT ERRED IN ALLOWING THE INVESTIGATING OFFICER TO GIVE "OPINION" TESTIMONY THAT THE HISPANIC MALE ENCOUNTER WAS A "NARCOTICS TRANSACTION," WHERE SUCH TESTIMONY UNFAIRLY "FILLED THE GAPS" IN THE STATE'S CASE AND INVADED THE PROVINCE OF THE JURY. (NOT RAISED BELOW).
A. DETECTIVE ROBINSON WAS NEVER QUALIFIED AS AN EXPERT, AND SO COULD NOT PROPERLY GIVE AN OPINION THAT DEFENDANT'S ENCOUNTER WITH THE HISPANIC MALE WAS A "DRUG TRANSACTION"; FURTHER, HIS OPINION DID NOT QUALIFY AS A LAY OPINION UNDER N.J.R.E. 701.
B. EVEN IF DETECTIVE ROBINSON WAS PROPERLY CONSIDERED AN EXPERT IN THE FIELD OF LAW ENFORCEMENT, CONTROLLING LAW PROHIBITED HIM FROM OPINING THAT AN OBSERVED ENCOUNTER WAS A "DRUG TRANSACTION," WHERE IT WAS THE PROVINCE OF THE JURY TO SO CONCLUDE.
III. THE TRIAL COURT ERRED IN ALLOWING THE INVESTIGATING OFFICER TO "OPINE" THAT THE ENCOUNTER WITH ANGELA JOE WAS A "NARCOTICS TRANSACTION." (NOT RAISED BELOW).
IV. THE PROSECUTOR MADE IMPROPER COMMENTS DURING HIS SUMMATION, WHICH PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL AND WHICH WARRANT REVERSAL.
A. THE PROSECUTOR IMPROPERLY REFERRED TO THE DENOMINATIONS OF MONEY FOUND ON DEFENDANT AS BEING EVIDENCE OF A NARCOTICS TRANSACTION, WHERE THERE WAS NO EXPERT TESTIMONY (OR ANY TESTIMONY) TO THAT EFFECT.
B. THE PROSECUTOR ALSO IMPROPERLY GAVE THE JURY HIS UNSUPPORTED "EXPERT" OPINION THAT IT WOULD NOT BE POSSIBLE TO OBTAIN FINGERPRINTS FROM THE BAGS OF DRUGS THAT WERE RECOVERED.
C. DURING HIS SUMMATION, THE PROSECUTOR IMPROPERLY COMMENTED THAT THE SURVEILLANCE OFFICER HAD "NO REASON TO LIE" AND SUGGESTED THAT JURORS WOULD HAVE TO FIND THAT THE OFFICER FABRICATED TESTIMONY OR PLANTED EVIDENCE IN ORDER TO REJECT HIS TESTIMONY AND ACQUIT THE DEFENDANT. (NOT RAISED BELOW).
D. DURING HIS SUMMATION, THE PROSECUTOR IMPROPERLY DISPARAGED THE ARGUMENTS OF DEFENSE COUNSEL. (NOT RAISED BELOW).
V. THE DEFENDANT WAS SUBSTANTIALLY PREJUDICED BY THE JURY VERDICT SHEET, WHICH DID NOT INSTRUCT THE JURORS TO STOP DELIBERATING IF THEY COULD NOT FIND DEFENDANT GUILTY OF CDS POSSESSION, WHICH WAS A NECESSARY ELEMENT OF THE DISTRIBUTION OFFENSES.
VI. THE TRIAL COURT ERRED BY NOT ACQUITTING DEFENDANT AT THE CLOSE OF THE STATE'S CASE, OR ALTERNATIVELY THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHERE THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT POSSESSED AND DISTRIBUTED CDS PARTICULARLY WITH RESPECT TO THE MELVIN ROBINSON ENCOUNTER.
VII. EVEN ASSUMING ARGUENDO THAT NONE OF THE ABOVE ERRORS, STANDING ALONE, WAS SUFFICIENTLY EGREGIOUS TO DEPRIVE DEFENDANT OF A FAIR TRIAL, THE COMBINATION THEREOF CONSTITUTES ERROR SUFFICIENT TO WARRANT REVERSAL.
VIII. THE SENTENCE SHOULD BE VACATED WHERE (A) AN EXTENDED TERM WAS IMPOSED WITHOUT THE STATE HAVING PROVIDED WRITTEN NOTIFICATION TO THE DEFENDANT AND COURT OF THE DECISION TO SEEK AN EXTENDED TERM, AND WITHOUT THE STATE SETTING FORTH THE BASIS FOR REFUSING TO WAIVE AN EXTENDED TERM; (B) THE SENTENCE VIOLATED NATALE II; AND (C) THE SENTENCING COURT ENGAGED IN A DEFICIENT "BALANCING" ANALYSIS WHICH RESULTED IN AN EXCESSIVE SENTENCE.
A. AN EXTENDED TERM WAS IMPOSED WITHOUT THE STATE HAVING FIRST SERVED AND FILED A WRITTEN APPLICATION; AND WITHOUT THE STATE PROVIDING A BASIS FOR REFUSING TO WAIVE AN EXTENDED TERM.
B. THE SENTENCE OF IMPRISONMENT ON COUNT THREE AND COUNT FIVE VIOLATED NATALE II WHERE A SENTENCE ABOVE THE PRESUMPTIVE TERM WAS IMPOSED, BASED ON AGGRAVATING FACTORS OTHER THAN THE DEFENDANT'S PRIOR CRIMINAL RECORD.
During its deliberations, the jury first asked for the court to "[r]ead back the testimony [of] Detective Robinson on the transaction between Michael and Jarel." The judge asked the jury, with consent of counsel, for a starting point and ending point, inquiring "whether [the jury] want[ed] to hear the direct or cross or if [it] just want[ed] to hear the entire testimony all over again." The jury responded with a supplemental question that it wanted the testimony from the Hispanic person through the arrival of Melvin. Defendant's counsel objected, asserting:
Judge, I'm just a little confused. They want from the Hispanic male to Melvin Robinson? Then I would object, Judge, because they're not being charged with any count relating to the Hispanic male on the verdict sheet, so I don't know why they would want that because it's not what you charged them with.
In addition, Judge, I'm a little confused regarding the cross-examination. I know it was a little all over the place and maybe not too succinct, but I don't think it would be proper just for them to hear direct examination of Detective Robinson and then hear no cross-examination at all.
The judge sought further clarification from the jury, which advised that it only wanted the direct examination. Robinson's direct testimony was read to the jury. Defendant's Points I, II, and III implicate the following portion of Robinson's direct testimony:
Q: You indicated that you observed an exchange?
A: Yes, sir.
Q: From where you were standing, could you tell what the item was that was being exchanged?
A: Small light-colored object.
Q: And the Hispanic male gave something to
Jarel as a result of the exchange?
Q: And what did you observe?
Q: Could you tell what the denominations were from your location?
A: No, but I could tell that it was cash.
Q: How long did that exchange take place? A: Quickly, very quickly.
Q: And, once again, how many feet was this away from you?
A: Seven feet, approximately seven feet.
Q: Based upon what you now have seen, the interaction between this Hispanic male, Jarel Maggette and Michael Majette, did you have an opinion as to what was occurring at that point?
Q: And what was your opinion?
A: I believed that I just observed what appeared to be a drug transaction.
Q: As a result of having that opinion, did you do anything with your scoop teams in the area?
Q: Can you indicate for the jury --
A: I advised the scoop teams to -- of the description and direction the Hispanic male was walking in and to check. I was immediately advised by the backup units that they -- he could not be located at that time.
Defendant joined co-defendant's pretrial motion seeking to exclude the challenged testimony based upon the argument that it was "totally irrelevant to the other transactions that happened afterwards." The judge found, contrary to their argument, that the evidence was relevant as it involved observations of the officer which led to the arrest of both defendants. He also found it would not cause an undue waste of time or be cumulative under N.J.R.E. 403(b).
On appeal, defendant, for the first time, asserts that the evidence was unduly prejudicial because defendant was never charged with any crime in connection with his encounter with the Hispanic and, thus, represented bad acts from which the jury could infer that defendant was involved in a drug deal immediately preceding the events for which he was tried. Using essentially the same argument, defendant contends that the evidence was inadmissible under N.J.R.E. 404(b). Defendant further argues that Robinson's testimony that he believed he observed a drug transaction was improperly elicited as an opinion because the Hispanic was never apprehended and there was no confirmation that he purchased drugs. Defendant maintains that the harm of Robinson's testimony was evinced by the questions asked by the jury during deliberations.
We first address defendant's argument that testimony concerning the transaction with the Hispanic was not relevant, N.J.R.E. 401, and its probative value was outweighed by its prejudicial effect, N.J.R.E. 403(a). A jury is not "expected to make its decision in a void." United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980). Evidence of circumstances taking place within the same time frame as the crime should not be excluded as not relevant if they establish the context of the criminal event, explain the nature of, or present the full picture of the crime to the jury. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). A trial judge is given broad discretion in determining whether or not to exclude evidence under N.J.R.E. 403. State v. Sands, 76 N.J. 127, 144 (1978). We are not permitted to overturn a trial judge's ruling to admit or exclude relevant evidence based upon weighing its probative value, unless we find it is "'so wide of the mark that a manifest denial of justice resulted.'" Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). Robinson's testimony concerning the transaction with the unidentified Hispanic presented the full picture of the crime surrounding defendant's arrest. As such, it was relevant and not unduly prejudicial.
For the same reasons, we reject defendant's argument that the same evidence was highly inflammatory and inadmissible as other crimes or bad acts under N.J.R.E. 404(b). N.J.R.E. 404(b) "does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." Cherry, supra, 289 N.J. Super. at 522; see also State v. Long, 173 N.J. 138, 157 (2002). "Other crimes" evidence that relates directly to the crimes for which the defendant is on trial is admissible if it "serves to paint a complete picture of the relevant criminal transaction," State v. Martini, 131 N.J. 176, 242 (1993), "'furnishes part of the context of the crime[,]' or is necessary to a 'full presentation' of the case." Masters, supra, 622 F.2d at 86 (citations omitted); Cherry, supra, 289 N.J. Super. at 522 ("Evidence of events that take place during same time frame as the crime charged . . . will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury."); see also State v. Ortiz, 253 N.J. Super. 239, 244 (App. Div.), certif. denied, 130 N.J. 6 (1992) ("Here, the testimony concerning prior drug transactions observed by the detectives during surveillance constituted a part of the res gestae or a continuing course of conduct of defendant.").
We next address defendant's challenges, raised for the first time on appeal, to Robinson's testimony that he believed, at the time, that he witnessed a drug transaction as the events he observed regarding the Hispanic and Joe. We initially note that, because defendant did not object to the comments now challenged, we must review the asserted error under the plain error standard. State v. Macon, 57 N.J. 325, 333 (1971).
Defendant argues that because Robinson was never qualified as an expert witness he should not have been permitted to testify as to his belief that he witnessed a drug transaction. The State counters, asserting that Robinson's testimony was properly elicited as a lay opinion. N.J.R.E. 701. Defendant maintains that because the Hispanic male was never apprehended Robinson's testimony cannot be considered a lay opinion because Robinson did not have actual knowledge that a drug transaction had occurred. We agree with the State that the testimony qualified as a lay opinion.
N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.
Robinson's testimony concerning both transactions was based upon his observations, made in a high drug area, which provided him with a reasonable belief that a drug transaction had occurred. Further, his opinion regarding defendant's involvement with the Hispanic male, though not the sole basis for defendant's conviction, as we have previously noted, served to paint a full picture of the criminal event, thus aiding the jury in its understanding of Robinson's testimony.
Robinson's lay opinion was permitted to establish that, as a police officer in a high drug area, he had a reasonable belief that the first exchange was a drug transaction, which provided him with probable cause for his continued observations. It set the context in which the criminal activity took place. See State v. O'Neal, 190 N.J. 601, 612-13 (2007); State v. Moore, 181 N.J. 40, 47 (2004) (Based on police officer's experience, a neighborhood known for heavy drug trafficking, and observations of the exchange of money for small objects, it was reasonable for the officer to believe he witnessed a drug transaction.).
Contrary to defendant's contention, Robinson did not offer testimony respecting defendant's guilt or innocence. Robinson was not testifying as an expert, rather as a fact witness concerning his perception at the time. It was simply a characterization of defendant's conduct as perceived by him, based upon his specialized knowledge as a police officer. Indeed, our Supreme Court has noted that an expert is not needed to explain transactions such as the one here where "each defendant was observed directly handing something to the alleged purchaser and receiving what appeared to be payment in return." State v. Nesbitt, 185 N.J. 504, 516 (2006); see, e.g., Trentacost v. Brussel, 164 N.J. Super. 9, 20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (a detective's testimony that a neighborhood is a high crime area is admissible as a lay opinion).
We are satisfied that the now-challenged testimony, elicited from Robinson concerning his belief at the time, was proper as a lay opinion and did not amount to error. Moreover, even if we were to consider it improper, which we do not, it does not amount to plain error as it was corroborated by the matching baggies of crack cocaine recovered from the two buyers apprehended a short time after the transaction with the unidentified Hispanic male.
Defendant asserts several challenges to comments made by the prosecutor in his opening and closing statements. During his opening, the prosecutor made the following remarks concerning the denominations of money found on defendant:
Michael Majette had $113 on him. I believe he had two five-dollar bills and 103 one-dollar bills.
You will hear about the importance of the currency and the denominations that were involved here. Those are the facts that I intend to prove to you during the next day or so during this trial.
During the trial, defendant's objection was sustained when the prosecutor asked Robinson's opinion concerning the significance, if any, of the 103 one-dollar bills and 2 five-dollar bills found on defendant. During summation, the prosecutor stated the following concerning the significance of the denominations of bills found:
I want to talk a little bit about the currency. There's 14 [here] of you. You probably took a collection in the back of the jury room for a delivery and said everybody hand in all your singles, if 12 of you gather up all your singles, I'm almost sure that you wouldn't come to 103 number. What does that tell you? What does that tell you about Michael Majette, who is holding the money, who is holding the drugs at one point for his younger cousin? He's receiving all that money back, 103 singles. You heard Jarel had 12 singles. A lot of singles out there that day, consistent, which I believe the evidence shows, with drug sales.
After the prosecutor finished his summation, defendant's counsel voiced his objection to those comments in an unsuccessful motion for mistrial.
Defendant asserts that the challenged comments are not based on any testimony found in the record, constitute the prosecutor's personal opinion, and is beyond "a fair inference flowing from the factual testimony" because "the average juror would have no basis to believe that the presence of numerous one-dollar bills carried a special significance or was even suspicious." Defendant also argues that the subject matter itself required expert testimony. We reject those contentions.
Prosecutors are duty-bound to confine their comments "to facts revealed during the trial and the reasonable inferences [that] may be properly drawn therefrom." State v. Marks, 201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). Prosecutors are permitted to comment on all reasonable inferences that may be drawn from the facts established at trial. See ibid.
In our view, the prosecutor's comments focused on reasonable inferences from the evidence adduced. The large number of singles found on defendant, when viewed with defendant's participation in the activities described by Robinson in a high drug area, supported a reasonable inference that he was involved in drug transactions.
During summation, defense counsel commented:
Again, as my co-counsel told you, reasonable doubt arises from the evidence, reasonable doubt arises from lack of evidence. Again, no fingerprints, never took any fingerprint analysis of these drugs, never did any tests on the money to see if there was any kind of drug residue on it. That was never done. No videotapes, no pictures, no -- nothing. Responding in his summation, the prosecutor argued:
Now you can take a look at the size of these bags, maybe the size of your thumbnail. I mean, part of what is complained about through the defense in their summation is, well, there's no fingerprints here. How in the world anyone could ever get a fingerprint from this bag is beyond me. You know, unless you've got the person sitting there saying, well, let me make sure I roll my finger on this. Is it a smooth bag or is there a rock of crack cocaine in there? Can you even fit any fingerprint on there? And it goes from one person to another.
Defendant contends that the prosecutor's comments were unsupported by the record, unfair because they lacked factual support with expert testimony, and essentially placed the prosecutor's own expertise and credibility before the jury.
Prosecutors are allowed to respond to an argument raised by the defense so long as it does not constitute "a foray beyond the evidence adduced at trial." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.) (citing State v. Wilson, 128 N.J. 233, 241-42 (1992)), certif. denied, 144 N.J. 587 (1996). In our view, the prosecutor was merely responding to defendant's arguments. The trial judge instructed the jury that the comments of counsel were not evidence. Under those circumstances, we do not view the prosecutor's reference to fingerprints as misconduct. Even if it could be said to have crossed an acceptable threshold, we would consider it harmless, beyond a reasonable doubt. R. 2:10-2.
Defendant next contends that the following comments by the prosecutor, which were not objected to at trial, constituted improper vouching for the credibility of Robinson:
You observed Detective Robinson testify. You listened to him. How was his demeanor? How did he appear to you? And if he appeared to you the way I believe he did, that he is a good officer. Ask yourselves, why would he come in here before you and lie about Jarel Maggette and Michael Majette? Why would he do that? He has no reason to, he's just telling you the way it is.
And if he wants to come in here and lie to you, maybe he would then start changing facts and say, you know what, every time Jarel needed drugs he went back to Michael and got it. Each transaction, got drugs right from Michael, brought the money right back to him. Maybe that would be the lie that he would tell. Or maybe he would take one of these bags from Angela Joe, if you're going to come in here and lie anyway, bring that bag back and put it on Michael. Hey, all three bags match. Look at that. Michael's got a bag, Angela Joe's got a bag, and Melvin got a bag. Did he do that? No. He told you the way it happened, the way it is, and unfortunately, drug sales occurred there and on that day, unfortunately for Mr. [Majette], Detective Robinson was there, plain and simple.
Those comments were made in response to the following statement made by co-defendant's counsel in his closing:
Offering us information or observations about suspected drug dealing which he admits is done very quickly, very quick hand-to-hand contact. Very difficult to discern when you're staring and looking directly at the people, never mind crouched in the back with dark glass trying to peer around a back seat. I think you would have to be Superman with X-ray vision to be able to have observed with any degree of clarity the things that Detective Robinson says he saw.
Now I have no doubts that he's trying to do a good job. I have no doubt that he's out there trying to fulfill the investment that the police department put in him. I have no doubts that he's out there wanting to come back to headquarters and say something along the lines of, I was productive today, instead of, we're out there on stakeout and turned up zip. And that's one of the reasons why [you and I] make these decisions and not police officers. That's why we have juries.
Since defense counsel failed to object at trial to the asserted improper remarks of the prosecutor, we must again determine whether the comments constituted plain error. R. 2:10-2. The test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct "was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). Thus, the summation must be viewed in the context of the entire trial to determine whether defendant was denied a fair trial.
The failure to object not only deprives the trial court of an opportunity to rule on the objection, but it also suggests that defense counsel did not believe the remarks were so prejudicial that an objection should be made. State v. Frost, 158 N.J. 76, 84 (1999). Moreover, not every imperfection in the course of a prosecutor's summation will require reversal of a conviction. It is inappropriate, however, for a "'prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.'" State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice § 3-5.8(b) (2d ed. 1980)). However, in evaluating a claim of error, we are obliged to recognize that a prosecutor may argue the State's case in a forceful manner. State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). It is not unusual to find that criminal cases are tried with some degree of emotion. "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." State v. Johnson, 31 N.J. 489, 510-11 (1960).
The prosecutor's comment regarding Robinson's demeanor at trial, his appearance as credible, and a "good officer" was not an improper vouching for the credibility of the police testimony. The credibility of the police was put in focus by defendant's challenge to the accuracy of Robinson's observations and his counsel's comments that, although he was sure Robinson was trying to do a "good job," he wanted to have "a productive day" and not come back to headquarters and "turn up with zip." Jarel testified that he and defendant were misidentified by the police. Robinson's credibility was hotly disputed. Consequently, the prosecutor's summation was a response to defense counsel's summation. Moreover, unlike in Frost, the prosecutor did not suggest that Robinson would not lie because charges could then be brought against him or because of his status as a police officer.
To be sure, our courts have consistently held that statements that a police officer has no motive to lie, coupled with a reference to an adverse consequence to the officer's career, are wholly inappropriate. Frost, supra, 158 N.J. at 85-86. Nevertheless, in our view, in the context of the trial, the prosecutor's comment that Robinson was a "good officer," was not so egregious as to deprive defendant of a fair trial.
The final remarks challenged by defendant are the following:
A little bit -- actually, a lot of cross-examination focused on the seizure of the currency and you heard, you weren't the one who actually took the money off of my client, were you; and, although you counted the money, that's not good enough, you didn't take it off of him directly; and, although my client may have signed that form, that's not good enough. And I think you can see, from the tenor of that cross-examination, what is ever going to be good enough? What is good enough? Observations, obviously, alone aren't going to be good enough. The testimony of an officer saying he sees a buyer come into the area, purchase drugs, that buyer's stopped with drugs, that's not going to be good enough. A person seen on the corner, maybe transactions, that's not good enough. Person signs a currency report, that's not good enough. When is it ever going to be good enough?
I brought in the officer that actually seized the money off of both of these individuals and I think in the cross-examination of him, that wasn't even good enough. So I think you have to look at the standard of proof that the defense is trying to invoke here. My belief is, based upon the position that they're taking that it's never going to be good enough, there could never be a conviction here in New Jersey or in the United States.
Defendant contends, for the first time on appeal, that those statements disparaged defense counsel's arguments, which merely pointed to contradictory testimony, by characterizing them as "lawyer talk." He also argues that the prosecutor's statements improperly encouraged the jury to convict on the basis of a societal duty to keep the criminal justice system intact.
A prosecutor is not permitted to attack, disparage, or demean adverse counsel, either directly or indirectly. State v. Thornton, 38 N.J. 380, 397 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed. 2d 1039 (1963); State v. Adams, 320 N.J. Super. 360, 370 (App. Div.), certif. denied, 161 N.J. 333 (1999). However, as we have previously pointed out, a prosecutor is permitted to respond to defense counsel's arguments. Here, the prosecutor was responding to the suggestion by co-defendant's counsel that the police should have videoed the alleged transactions. The comments did not directly or indirectly disparage counsel, rather, they were directed to the theory of the defense that there was a lack of certain evidence needed to convict beyond a reasonable doubt. Again, we do not view those remarks as sufficiently egregious to deprive defendant of a fair trial. R. 2:10-2.
Defendant next contends that the verdict sheet, which asked the jurors to vote on each count beginning with possession of cocaine and ending with distribution within 1000 feet of school property, substantially prejudiced defendant's right to a fair trial because it did not advise the jury to stop its deliberations if it found defendant not guilty of possession. He points out that, because possession is a necessary element of distribution, a finding of not guilty on the first count possession charge would have required the same verdict for the counts charging distribution.
A verdict sheet does not provide grounds for reversal unless it is misleading, confusing, or ambiguous. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). A verdict sheet is for the purpose of recordation. It is not to be used for sequential deliberations. State v. Hughes, 215 N.J. Super. 295, 300-01 (App. Div.), certif. denied, 107 N.J. 55 (1986). Similar to a jury charge, a party is not entitled to have an interrogatory framed in the party's own words. See Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994). Contrary to defendant's arguments, the jury sheet met the required criteria. We are satisfied that the verdict sheet questionnaire was not confusing, misleading, nor ambiguous when considered as a whole together with the instructions given and the verdict returned by the jury.
Defendant argues that the trial judge erred in denying his motion for acquittal and that the verdict was against the weight of the evidence. We have considered defendant's contentions and supporting arguments and are satisfied that the trial judge's denial of his motion to acquit was proper, given the entirety of the evidence presented. State v. Reyes, 50 N.J. 454, 458-59 (1967); R. 3:18-1. Defendant's Point VII assertion that the cumulative effect of the trial error alleged in his preceding points is rendered moot by our rejection of those contentions.
Finally, we address defendant's several arguments regarding the sentence imposed. Following the jury verdict, the prosecutor notified the court orally that the State intended to move for an extended term, and would "follow up" with a formal notice of motion. Sentencing was scheduled for September 27, 2002. Defendant did not appear, was eventually apprehended in North Carolina in April 2005, and thereafter returned to New Jersey. He was sentenced on December 8, 2005. At the sentence hearing, the State sought a mandatory extended term under N.J.S.A. 2C:43-6f. The prosecutor argued that, because an extended term was mandatory, he did not believe that he needed to file a formal motion. Defendant's counsel noted that a formal motion was required but conceded that defendant's record met the predicate drug offenses. When asked by the judge, defense counsel acknowledged that there was no defense to the imposition of a mandatory extended term. The judge then permitted the State to make a "pro-forma" oral motion.
Generally, where a prosecutor applies before a sentencing court, the sentencing court must impose an enhanced-range sentence. State v. Thomas, 188 N.J. 137, 149 (2006).
Procedurally, when a prosecuting attorney makes application under N.J.S.A. 2C:43-6(f), the sole determination for the sentencing court is to confirm that the defendant has the predicate prior convictions to qualify for enhanced sentencing. No other fact-finding, or collateral assessment of the prior convictions, takes place. The statute does not permit the court to engage in any further analysis because when the predicate prior sentences are present, enhanced sentencing must occur. [Id. at 150-51.]
The Attorney General's guidelines "require prosecutors to establish the existence of the defendant's predicate drug offense and to provide written notification to both the court and the defendant of the State's intention to apply for an extended term." State v. Kirk, 145 N.J. 159, 168-69 (1996). Defendant asserts on appeal that because a formal motion was not made there can be no confidence that the prosecutor properly exercised his discretion in refusing to waive an extended term. However, defendant does not argue on appeal that his record does not contain the predicate offenses that require the court to impose an extended term. Thomas makes it clear that "once [a] prosecutor makes [an] N.J.S.A. 2C:43-6(f) application for extended-term sentencing, 'the sentencing judge has no discretion to reject the application.'" Thomas, supra, 188 N.J. at 150 (quoting State v. Brimage, 153 N.J. 1, 11 (1998)). Under the circumstances here, we see no compelling need to remand for re-sentencing to permit a formal rerun of the State's application for imposition of a mandatory extended term.
Defendant asserts that because the nine-year extended term sentence imposed was more than the presumptive term in effect prior to the decision in State v. Natale (Natale II), 184 N.J. 458, 466 (2005), it is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). He also asserts that the judge erred in balancing the aggravating and mitigation factors. We reject those contentions. Defendant's sentence was imposed more than five months after the decision in Natale II. Thus, there was no presumptive term in effect and no corresponding constitutional violation. Moreover, we are satisfied, from our review of the entire record, that the judge reasonably weighed the aggravating and mitigating factors. State v. Megargel, 143 N.J. 484, 494 (1996); State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); State v. Murray, 240 N.J. Super. 378, 403, (App. Div.), certif. denied, 122 N.J. 334 (1990). In our view, the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).