April 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER GREEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-07-1583.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2007
Before Judges Coburn and Fuentes.
Defendant Christopher Green was tried before a jury and convicted of one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), one count of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), one count of third-degree distribution of cocaine, N.J.S.A. 2C:35- 5(a)(1), one count of third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7, one count of second-degree distribution of cocaine with 500 feet of public property, N.J.S.A. 2C:35-7.1, and one count of third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2.*fn1
After merging all the convictions with the second-degree conviction for distribution of cocaine within 500 feet of public property, the court sentenced defendant to an extended term of thirteen years, with a parole ineligibility period of six and one half years. The court also imposed the mandatory fines and penalties. Defendant now appeals. After reviewing the record, and in light of prevailing legal standards, we affirm.
The State's case included the testimony of two Atlantic City police officers who made two controlled purchases of cocaine directly from defendant while engaged in an undercover investigation. Officer Alexis Smith made the first "controlled buy." While driving in an unmarked car along South Ocean Avenue in Atlantic City, Smith approached a person subsequently identified as Lionel Laria. Smith was in an undercover capacity, wearing civilian clothes. When she asked Laria to sell her cocaine, he told her to drive around the block, because he needed to get the drugs from a friend.
After driving around as directed, Smith returned to where Laria was standing and upon seeing Smith, Laria called out to his friend "Chris" (a/k/a "C") to join them. Chris approached Smith's car and told her to drive further up Ocean Avenue. At this point, Chris and Laria entered Smith's car. Once inside, Smith purchased a quantity of cocaine directly from Chris for the sum of sixty-dollars. After completing the transaction, Chris gave Smith a telephone number for her to call if she wanted to purchase cocaine again. Smith also saw Chris give Laria "little rock crumbles" of cocaine as an apparent reward for the referral.
Smith was wearing an audio transmission device at the time the transaction took place. The entire exchange was thus monitored by fellow Atlantic City Police Officer Sean Sutley, who also testified at trial. Sutley stopped and questioned Chris when he and Laria left Smith's car. He decided not to arrest him at this time, however, explaining to the jury that he knew defendant Christopher Green "from prior experience."
Sutley conducted another undercover "controlled buy" operation the following week. This time, Atlantic City Police Officer James Scoopa acted as the customer. As Smith had done, Scoopa wore an audio transmission device which allowed Sutley to monitor the transaction. Scoopa testified that he drove to the corner of New York Avenue in an unmarked car, accompanied by an undercover informant.
At this location, Scoopa spoke to defendant and a woman identified as Debra Allen. He told defendant he wanted to buy $150 worth of cocaine. Defendant directed him to go to the area where the Ascot Motel was located. Scoopa agreed and gave defendant five dollars for taxi fare. Upon arriving, Allen walked over to Scoopa's car and began to talk to him while defendant went to retrieve the cocaine from another location.
Finally, defendant arrived; he handed Scoopa a ten dollar bill and told him to give him back the bill after Scoopa removed the cocaine contained folded therein. Scoopa complied. Thereafter, Scoopa paid defendant $150. Defendant and Allen then left the area.
The Smith "buy" took place on April 13, 2005; the Scoopa transaction occurred on April 20, 2005; defendant was not arrested and charged with these offenses, however, until October 2005.*fn2 Both Smith and Scoopa identified defendant from photographs shown to them shortly after their respective encounters with defendant.
The jury began deliberating at approximately 12:30 p.m. on May 16, 2006. Shortly thereafter, the court interrupted the deliberations to respond to an earlier jury question. The court then directed the jury to break until 2:00 p.m. Two hours later, the jury sent out a note containing the word "deadlocked." After conferring with counsel, the trial judge gave the jury the following instructions:
You've been deliberating now for under two hours. I realize that this is a relatively short case and there is not a lot of evidence for you to consider, however, I don't believe you've bee deliberating long enough. I'm going to have you keep deliberating, through, until 4:30[p.m.]
Please consider that no other jury would have any better opportunity to understand the facts in issue in this case than you. You've heard the evidence, you've heard the information that's been presented to you. It's your duty to deliberate and to return a verdict if you can.
So I'm going to put you back in to continue your deliberations for about an hour. If, at that point, the hour is completed and you have not returned a verdict, I'll have you back in and then we'll see where we go from there.
Deliberations resumed until the court acknowledged receipt of a third note from the jury asking for "reports and/or transcripts of officers' testimony for 4/13 and 4/20." If the transcript was unable, the note continued, will the court "specify Detective Alexis Smith's testimony of what defendant wore on 4/13, specifically any headwear and where he sat in her vehicle." After again conferring with counsel, the court informed the jury that the police reports requested were not part of the evidence presented by the State; similarly, there were no transcripts for the jurors to review. Alternatively, the court advised the jury that it could hear the audio recording of Smith's trial testimony. The jury accepted the offer; Smith's direct and cross-examination testimony was played to the jury.*fn3
At the end of the play-back, the court directed the jury to continue deliberating. The court noted, however, that given the late hour, the jury could only continue deliberating for twenty minutes more. If a unanimous verdict was not reached within this timeframe, the jury would resume deliberations the following day. No verdict was reached before this deadline, and the jurors were told to return the following day.
After the jurors had left the courtroom, the trial judge noted, for the first time on the record, that a sheriff's officer had given him a note from juror number six that stated: "She did say she wasn't going to put another young black man in jail." The judge further noted that he had discussed this with counsel "in chambers." The judge then made the following statement:
I've informed counsel of what position I'm going to take in that they have not yet reached a verdict.
Tomorrow morning before they begin deliberations, I'm going to bring juror number six in, I'm going to voir dire her relative to the -- what transpired, ask her to identify who prepared this note, the circumstances . . . around it and let me know, if she does know, who allegedly said this before, during -- before or during the deliberations of these jurors.
If I can find out who the juror was, I'm going to have the juror in, place that juror under oath and examine her as to whether or not she has an inflexible attitude towards deliberating; whether she has a bias or a prejudice that she can't set aside, to consider only the facts as they find them and the law as I've given to them. Depending on the answers of that juror, we may then at that point need to determine whether or not she's incapable of deliberating impartially and without a bias in this case. And I may have to discharge her and impanel an alternate at that point.
However, subject to the second prong, that deliberations have not yet proceeded to such a point where they could not cast aside any conclusions that they have reached and deliberate anew. From what I just heard, it appears that they are not near [a] verdict, they have not reached a consensus on any of the questions. So -- and in view of the relatively short period of time in which deliberations have proceeded, at this point, their total deliberating time has been under three hours, so likely they have not yet reached that point. But I will have to individually voir dire each of the jurors separately. I propose to do that here in open court, of course, on the record. Anything to add counsel?
DEFENSE COUNSEL: No, thank you.
PROSECUTOR: No, Your Honor.
The following day, before the resumption of deliberations, the court and counsel agreed to have the judge question juror number six directly, and outside the presence of the rest of the jurors, in an effort to ascertain who authored the note. After some initial confusion, juror number six indicated that the she had simply passed the note to the sheriff's officer. She believed, however, that the note was referring to a comment made by juror number eight.
With counsel's consent, the judge questioned juror number eight individually in open court. This juror, described as a young African American woman, gave the following responses to the court's questions:
THE COURT: I'm making an inquiry of jurors regarding not your deliberations and what you're talking about relative to the evidence and how you're finding it but what may have been injected as by way of things that are not appropriate for a jury to consider.
I have received indication [sic] from others that there may have been a concern relative to the race of the defendant and whether or not it would be appropriate for him to be considered guilty because of his race. Do you know anything about that?
JUROR NUMBER EIGHT: Yesterday I made a comment stating, I said, you know, I don't want to put another black man in jail if he doesn't need to be in jail. And that's exactly what I said.
THE COURT: Okay.
JUROR NUMBER EIGHT: Then two other jurors later on, maybe like two or three hours later, had said, well, then all of a sudden it came up, well, do you just not want to put a black man in -- I said no, that's not what I said; I said I don't want to put another black man in jail. And then I even explained to them, both of those two jurors, that I don't care if he's black, green, yellow, whatever. I'm not going to -- you know, 'cause it bothers me, you know, that a person's future is in my hands. And I don't want to make a mistake and have this man go to jail if he doesn't need to go to jail.
The court then continued to question juror number eight as to her understanding of her role and responsibilities as a juror. Through the use of specific questions, the judge confirmed the juror's understanding and willingness to abide by the court's instructions on the law. She also expressly agreed to decide the case only on the evidence presented at the trial, and not to consider defendant's race as a factor in determining whether the State had met its burden of proving him guilty beyond a reasonable doubt of the offenses enumerated in the verdict sheet. At the conclusion of the inquiry, both counsel indicated their approval and satisfaction with the methodology employed by the court.
Thereafter, the judge questioned each of the remaining deliberating jurors on whether anything that had transpired in connection with this incident had, in any way affected their ability to: (1) be fair and impartial; (2) decide the case based only on the evidence presented at trial; and (3) apply the legal applicable principles as explained by the judge. All of the jurors answered these questions affirmatively. Again, the judge arrived at and implemented this approach with the full participation and approval of counsel.
At the end of this process, the prosecutor moved before the court for the removal of juror number eight, replacing her with one of the two alternates. Defense counsel oppose the State's motion. After considering all of the evidence on the subject gathered through the voir dire, the court denied the State's motion. The court made the following findings in support of its ruling.
I'm going to deny your application of the State to substitute an alternate at this point. After this rather fulsome examination of these [jurors], I want to give them the opportunity to continue to deliberate in this case. They may not be able to reach unanimity. I think the rehabilitative factor of having spent time out here and discussing this amongst -- with me and individually and I'm going to charge them as a group again along the following lines, that -- because the elephant's in the living room.
At this point, they all know what we've discussed. And so we're going to do it to them as a group with a view towards them continuing to be nonpartisan fact-finders; that race has no bearing in a courtroom, has no bearing in their deliberations and they should cast that aside and that concern aside; consider only the evidence that's before them and whether or not that evidence is sufficient beyond a reasonable doubt to convict this defendant based on the evidence that they've seen on the counts that are before them.
The court gave the supplemental charge when the jurors returned to the courtroom. Sometime thereafter, the jury returned a unanimous verdict of guilty against defendant on the counts specified ante. Against this factual backdrop, defendant now raises the following arguments in support of his appeal.
WHERE THE JURORS REPORTED A DEADLOCK, THE INSTRUCTION TO CONTINUE DELIBERATIONS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)
DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE OFFICER'S GRATUITOUS TESTIMONY THAT HE WAS "FAMILIAR" WITH HIM. (Not Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN EXTENDED TERM OF THIRTEEN YEARS WITH SIX AND ONE-HALF YEARS OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE. (Not Raised Below)
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We make only the following brief comments. When a jury announces that it is deadlocked, the better practice is for the trial judge to give the Supreme Court approved Model Charge regarding the utility and appropriateness of additional deliberations. State v. Czachor, 82 N.J. 393, 405 n.4 (1980); State v. Love, 245 N.J. Super. 195, 200 (App. Div.), certif. denied, 126 N.J. 321 (1991). Here, the court's supplemental instructions did not track, word for word, the Model Charge. We are satisfied, however, that the court's instructions here imparted to the jury sufficient guidance for it to perform its essential fact-finding function in a fair and impartial manner. Most importantly, there is no evidence that the court's actions here had the capacity to coerce or intimidate any dissenting juror. Cf. State v. Figueroa, 190 N.J. 219, 240 (2007).
The testimony of the police officer concerning his familiarity with defendant was fleeting and uneventful. The absence of a timely objection from defendant's trial counsel illustrates the point. Furthermore, the absence of an objection from defense counsel also elevates our standard of review to plain error. R. 2:10-2. There is nothing in the record that indicates that this fleeting comment was clearly capable of producing an unjust result. Ibid.
Finally, the sentence imposed by the court was well-supported by the record, and within the judge's discretionary authority under Title 2C.