April 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEROME STEPHENS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-08-1109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges Payne and Sapp-Peterson.
Defendant, Jerome Stephens, appeals his conviction for drug-related offenses. Defendant claims that his right of confrontation was violated when the court permitted hearsay testimony describing the location where he was arrested as an area from which they had received numerous telephone calls reporting narcotics activities. Defendant also contends the trial court committed reversible error when it failed to give the instruction to the jury on inconsistent statements of witnesses found in the Model Jury Charges (Criminal). We reject these claims and affirm the judgment of conviction.
On August 9, 2004, a Passaic County grand jury indicted defendant on charges of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (Count One); distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5 (Count Two); distribution of a controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (Count Four); and possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Five). Co-defendant Rafael Lopez was charged in Count Six of the indictment with possession of a controlled dangerous substance.
According to the evidence presented at trial, the indictment stems from an undercover surveillance operation on May 5, 2004. On that date, around 1:30 p.m., Detective Marvin Sykes (Sykes), along with four other undercover Patterson police officers, were traveling in unmarked police vehicles "looking to make narcotics arrests in certain areas." Sykes turned onto Rosa Parks Boulevard off of Broadway, an area he described as a "hot spot for us[,]" more specifically, "[t]hat strip there from Fair Street to 12th Avenue, which is maybe four blocks, there's a lot of drug activity in that . . . stretch." As he drove past the property located at number 264, a location that he also described as "a place that we had numerous calls for . . . illegal drug selling occurring in front of it [and] on the side of it[,]" his attention was drawn to two individuals standing at the side of the house in the driveway. He described one individual, later identified as Rafael Lopez, as a Hispanic male attired in a peach-colored shirt, and the other individual, subsequently identified as defendant, as a black male wearing a black shirt. Based upon his observation of Lopez handing what appeared to be paper currency to defendant, along with his knowledge of the area and his experience, Sykes believed that he was witnessing what "was possibly a drug transaction going on." Upon further questioning by the prosecutor, Sykes indicated, "I seen small items with the hands . . . going across and I just reacted to that just to see what was going on." Sykes stopped his car and exited the vehicle, at which time Lopez and defendant started to walk towards him, and as they did so, Lopez dropped two small objects to the ground. Sykes immediately recognized the two small objects as "glassines of suspected heroin." On cross-examination, Sykes acknowledged that in his report he did not describe the color of the items he saw Lopez discard or that he also saw currency exchanged. Sykes arrested Lopez and retrieved the bags from the ground.
Detective Orlando Robinson (Robinson) also testified. He indicated that he too was part of the undercover operation and recalled hearing Detective Sykes say something over the radio, and as he looked to his left towards the driveway of number 264, he too saw two men in the driveway. He did not witness any exchange between the two men but he did observe a male, whom he identified as defendant, toss small, light-colored objects to the ground. While other officers detained defendant, Robinson retrieved the discarded items, which were later determined to be fourteen glassine envelopes of heroin. Defendant was searched incident to his arrest, and police recovered $99 in twenty, ten, and one-dollar denominations. At the time of his arrest, defendant told police that he resided six or seven blocks away, and Lopez indicated that he lived twenty blocks away.
When the trial judge delivered his instructions to the jury, he did not give the Model Jury Charge (Criminal) on inconsistent statements but instead instructed the jury on inconsistent statements as part of his general instruction on credibility. The jury convicted defendant of all counts in the indictment. The trial judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced defendant to an aggregate eight-year custodial term with a four-year period of parole ineligibility along with appropriate fines and penalties. Defendant filed his Notice of Appeal on September 27, 2006.
Defendant raises the following points for our consideration on appeal:
THE JUDGE'S FAILURE TO GIVE ANY INSTRUCTION ON PRIOR INCONSISTENT STATEMENTS BY WITNESSES WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below.)
DETECTIVE SYKES' TESTIMONY THAT THE POLICE HAD RECEIVED "NUMEROUS CALLS" ABOUT ILLEGAL DRUG SELLING "IN FRONT OF" AND "ON THE SIDE OF" THE HOUSE AT 264 ROSA PARKS BOULEVARD VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below.)
We begin our review by noting that no objections to the testimony concerning 264 Rosa Parks Boulevard or to the judge's jury charge were raised during the trial. We therefore review the alleged errors under the plain error standard, namely, whether Sykes' testimony and the absence of a specific instruction on inconsistent statements were "clearly capable of producing an unjust result[.]" R. 2:10-2; see also R. 1:7-2.
The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). "[T]he plain error remedy will be sparingly employed, not casually invoked." Jurman v. Samuel Braen, Inc., 47 N.J. 586, 590 (1966) (citing Ford v. Reichert, 23 N.J. 429 (1957)). Accordingly, "[i]t is not the discovery of an error that is merely plain, i.e., apparent, distinct, undisguised, that warrants a nullification of the judgment. It must be one that prejudicially affects the substantial rights of the aggrieved party." Valls v. Paramus Bathing Beach, Inc., 46 N.J. Super. 353, 358 (App. Div. 1957).
A police officer's testimony explaining why he went to a particular location or undertook a particular investigation is recognized as appropriate to disabuse one of the notion that an officer has acted in an arbitrary manner. State v. Bankston, 63 N.J. 263, 268 (1973) (citing McCormick on Evidence § 248, p. 587 (2d ed. 1972)). Nonetheless, when an officer's testimony becomes more specific by making a statement that implicates an accused based upon hearsay evidence, the testimony is not only hearsay but also violates an accused's right of confrontation under both federal and state law. Id.; see also U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10.
The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a "'fair opportunity to defend against the State's accusations.'" State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed. 2d 297, 308 (1973)), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004). A defendant exercises his right of confrontation through cross-examination, which has been described as the "'greatest legal engine ever invented for the discovery of truth.'" State v. Branch, 182 N.J. 338, 348-49 (2004) (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed. 2d 489, 497 (1970)). "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of [an] accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271.
In this case, although Sykes' testimony described the front and side of 264 Rosa Parks Boulevard as a "place that we had numerous calls for . . . illegal drug selling occurring in front of it, on the side of it[,]" his testimony did not, as was the situation in Bankston, supra, in any way forecast that the officers were detailed to the scene to investigate narcotics transactions. Id. at 266. Instead, Sykes testified that the entire four-block area of Rosa Parks Boulevard between Fair Street and 12th Avenue, which included 264 Rosa Parks Boulevard, was considered a "hot spot" for narcotics activities.
In other words, the police were not specifically directed to 264 Rosa Parks Boulevard based upon information they received that narcotics were being sold from that location on that date, thus, inferentially implicating defendant. Rather, the police were on routine narcotics patrol surveillance in an entire area known for narcotics activity, without any specific direction to any particular location within the four-block area. What drew Sykes' attention to defendant was the "hands" activity he observed between defendant and Lopez, coupled with Sykes' knowledge that this location was known for narcotics activities. As such, Sykes' testimony did not implicate criminal conduct on the part of defendant by some unknown, non-testifying declarant. Id. at 268-69. The Confrontation Clause, like the rules of evidence prohibiting hearsay, protects a defendant from the "incriminating statements of a faceless accuser who remains in the shadows and avoids the light of court" against him. Branch, supra, 182 N.J. at 348, 349 (2005). That was not the situation here.
Finally, there was no objection to Sykes' testimony about 264 Rosa Parks Boulevard, no other witnesses gave such testimony, and the State did not reference this testimony in summation. Consequently, we view the remark as isolated and fleeting, not capable of producing an unjust result warranting reversal. State v. Harris, 156 N.J. 122, 172 (1998) (finding witness' testimony that defendant had offered to kill the father of her children, although inadmissible, did not turn the jury against defendant since the State never referred to this testimony again, and, thus, admission of this evidence was not capable of producing an unjust result that warranted a reversal).
Defendant next contends that by failing to give the jury the Model Jury Charge (Criminal) on inconsistent statements of witnesses, the court failed to properly focus the jury's attention on the single most important issue in the entire case, the inconsistency between Sykes' trial testimony and what he wrote in his report. Specifically, at trial, Sykes testified that he actually observed Lopez hand paper currency to defendant and that when Lopez dropped items to the ground, he could see that the objects were "two light colored items . . . I recognized immediately to be glassines of suspected heroin." On the other hand, in his report prepared shortly after defendant's arrest, Sykes wrote that he saw "some small items." Moreover, he did not indicate in the report that he saw currency being passed to defendant or that he recognized that the items were light-colored glassine envelopes of heroin.
Our Court has repeatedly stressed that "clear and correct jury instructions are essential for a fair trial." State v. Brown, 138 N.J. 481, 522 (1994). See also State v. Martini, 131 N.J. 176, 271 (1993) ("An appropriate charge is essential for a fair trial."), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995); State v. Concepcion, 111 N.J. 373, 379 (1988) ("Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial."); State v. Green, 86 N.J. 281, 287 (1981) ("Appropriate and proper charges to a jury are essential for a fair trial.").
The Model Jury Charge (Criminal) on inconsistent statements provides:
PRIOR CONTRADICTORY STATEMENTS OF WITNESSES (NOT DEFENDANT)*fn1
Evidence, including a witness' statement or testimony prior to the trial, showing that at a prior time a witness has said something which is inconsistent with the witness' testimony at the trial may be considered by you for the purpose of judging the witness' credibility. It may also be considered by you as substantive evidence, that is, as proof of the truth of what is stated in the prior contradictory statement.
Evidence has been presented showing that at a prior time a witness has said something or has failed to say something which is inconsistent with the witness' testimony at the trial. This evidence may be considered by you as substantive evidence or proof of the truth of the prior contradictory statement or omitted statement.
However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all of the circumstances under which the statement or failure to disclose occurred. You may consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his or her credibility. You may consider such factors as where and when the prior statement or omission occurred and the reasons, if any, therefor.
The extent to which such inconsistencies or omissions reflect the truth is for you to determine. Consider their materiality and relationship to (his/her) entire testimony and all the evidence in the case[;] when, where and the circumstances under which they were said or omitted and whether the reasons (he/she) gave you therefor appear to be to you believable and logical. In short, consider all that I have told you before about prior inconsistent statements or omissions.
You will, of course, consider other evidence and inferences from other evidence including statements of other witnesses or acts of the witness and others, disclosing other motives that the witness may have had to testify as (he/she) did, that is, reasons other than which (he/she) gave to us.
Perhaps, a hypothetical example will help you to understand what constitutes a prior contradictory statement and, more importantly, how it may be used by you.
Assume at the trial the witness testifies: "The car was red". In cross-examination of that witness, or at some other point in the trial, it is shown that at an earlier time, the witness testified or said: "The car was blue". You may consider the prior contradictory statement that "The car was blue" as a factor in deciding whether or not you believe that statement made at trial that "The car was red". You may also consider the earlier statement that "The car was blue" as proof of the fact or  evidence that the car was blue.
The court did not give this instruction. The court instructed the jury as follows:
As judges of the facts, you are to determine the credibility of the witnesses and in determining whether a witness is worthy of belief . . . and, therefore, credible, you may take into consideration the appearance and demeanor of the witness or witnesses; the manner in which he . . . or she may have testified; the witness' interest in the outcome of the trial, if any; his or her means of obtaining knowledge of the facts; the witness' power of discernment, meaning their judgment, understanding; his ability to reason, observe, recollect, and relate; the possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated, or contradicted, supported, or discredited by other evidence; whether the witness testified with intent to deceive you; the reasonableness of unreasonableness of the testimony the witness . . . has given; whether the witness made an inconsistent or contradictory statement; and any and all other matters in . . . the evidence which serve to support or discredit his or her testimony.
Through this analysis as the judges of the facts, you weigh the testimony of each witness and then determine the weight to give it. Through that process, you may accept all of it, a portion of it, or none of it.
Additionally, when the jury sent a note to the court indicating that they "would like to see Detective Sykes' report on arrest[,]" the court gave further instructions:
During the trial, you heard the testimony of the police officers. You heard the testimony of Detective Sykes and Detective O.J. Robinson. It was developed that these . . . officers prepared reports of their investigation. There were also Grand Jury minutes that were presented, as well, or marked in evidence -- or marked . . . for identification. These police reports and Grand Jury minutes, once again, were marked . . . for identification.
The police were permitted to refer to these reports to refresh their recollection as to the events reported. You are instructed that these reports, while being used to refresh the witness' recollection and for cross-examination as to material omissions or inconsistencies, they are not evidential and, therefore, you will not have the reports as exhibits in the jury room.
We do not believe the addition of the jury charge now urged on appeal by defendant would have had an effect on the outcome of the verdict. At trial, Sykes was subjected to extensive cross-examination related to omissions in his police report. Moreover, the failure to request an instruction on inconsistent statements or the failure to object to the judge's jury charge reinforces our conclusion that the defense did not perceive that defendant was prejudiced by the omission of the instruction or that defendant's right to a fair trial was compromised.
Where the claimed error pertains to a portion of the jury charge, the charge must be examined as a whole to determine its overall effect. State v. Wilbely, 63 N.J. 420, 422 (1973). We are satisfied that the portion of the charge related to credibility, as well as the additional instructions regarding Sykes' police report, when viewed as a whole, adequately conveyed to the jury that in evaluating credibility, it should consider inconsistencies in the testimony of the witnesses and that the instructions adequately "guided the jury in performing the critical task of determining defendant's guilt or innocence." Concepcion, supra, 111 N.J. at 381.