June 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AARON RITMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-08-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2008
Before Judges Stern and C. L. Miniman.
Defendant was convicted of distribution of a controlled dangerous substance (CDS) within 500 feet of a public property, N.J.S.A. 2C:35-7.1, and distribution of CDS within a school zone, N.J.S.A. 2C:35-7. He received concurrent sentences for these offenses. Other convictions were merged or led to concurrent sentences. Defendant received an aggregate extended term sentence of seven years in the custody of the Commissioner of the Department of Corrections with three and one-half years to be served before parole eligibility. The public zone offense was apparently third degree because of the amount of marijuana involved. See N.J.S.A. 2C:35-7.1.
The evidence at trial included the following: On January 20, 2004, Detective David Kohler, of the Burlington County Prosecutor's Office Narcotics Task Force, was working as an undercover officer in the New Yorkshire area of Burlington City, an area known as an "open air drug market." Detective Kohler testified that, as of that evening, he had posed as an undercover officer "approximately 100 times," and had purchased narcotics in that capacity in the New Yorkshire area "approximately 50 times." At the time of this undercover operation, Detective Kohler was working with a "confidential informant."
At approximately 6:41 p.m., Detective Kohler and the informant drove to a well-lit area of New Yorkshire, where the detective parked his vehicle on York Street, facing Broad Street. Upon parking the car, Detective Kohler "observed two black males and approximately two minutes later one man of those males [who would later be identified as the defendant] approached" the driver's side door of Kohler's vehicle. As the detective rolled down his window, defendant stood "approximately one arm's length away" from the Detective's car and they began discussing a potential drug sale.
Detective Kohler specifically asked defendant if he had "dimes or 20's," street terminology used to describe ten-dollar and twenty-dollar-bags of drugs. Defendant responded that he had, "nicks," which Detective Kohler knew, based upon his training and experience, meant that defendant had "pre-packaged" $5.00 bags of drugs. In response, Detective Kohler told defendant that he wanted eight bags. Defendant then proceeded to walk over to another black male, and Detective Kohler watched as the men exchanged what he thought to be a plastic bag. Defendant then walked directly back to the detective's car and handed him eight clear bags containing greenish vegetation. The detective then handed defendant $40.00 and defendant walked away from the car. The greenish vegetation was subsequently tested by the Burlington County Forensic Science Laboratory and tested positive for marijuana.
After Detective Kohler examined the contents of the bags handed to him by defendant, he looked in his rear view mirror and watched as defendant walked down York Street and turned onto Green Street. Detective Kohler then proceeded to drive out of the area, and used his "transmitting device" to call in a detailed description of defendant as "a black male, heavy-set build, [a]pproximately 5'10" to 6'0", [a]pproximately 220 to 240 pounds, [a]pproximately 28 to 30 years of age [who was] wearing a black-hooded sweatshirt and black sweatpants." Detective Kohler also gave a detailed description of the other man and the last known location of both men. The descriptions were transmitted to Burlington City Police Officer Ryan Elbertson who received the identification.
At approximately 7:30 p.m., Detective Kohler met with Officer Elbertson who showed Kohler "one unmarked photograph" of a man, and advised him that he "may or may not recognize" the person. Kohler "immediately recognized" the man in the picture as the man who sold him the eight bags of marijuana less than one hour before.
In the photograph shown to Detective Kohler, defendant had both a beard and a mustache. When Kohler was asked on cross-examination whether defendant had a beard and mustache at the time of the transaction, the detective stated that defendant "did not have a mustache or a beard" that night. In addition, Kohler noted that both at the time he gave the physical description of defendant over the dispatch radio, and when he filled out his police report two days later, he provided a detailed description of defendant, but did not include the person's facial features. He "didn't look at just the mustache and beard" in making his identification.
Detective Kohler further testified that he worked as an active undercover officer between January 20, 2004, and May 2004. The informant was also on active status during that time period. Defendant was not arrested until May 7, 2004, in order to permit Kohler and the informant to remain actively involved in the ongoing investigation of drug transactions in the New Yorkshire area.
Detective Kohler also testified that the area in which he and defendant conducted the sale of drugs was within 500 feet of the Clarkson Playground, and within 1000 feet of the Learning Institute for Family Enrichment, also known as the Holy Light Academy.
Officer Elbertson testified as to the actions he took on the evening of January 20, 2004. Officer Elbertson confirmed that was assigned as a "backup" and "identification" officer that evening. As such, once an undercover officer gave a description of a suspect, Officer Elbertson's duty was to endeavor to identify the suspect as a result of "driving by."
At the time the drug exchange at issue in this case was underway, Elbertson was parked in an undisclosed location.
After Detective Kohler transmitted a physical description of the person who sold him marijuana, Elbertson immediately drove to the area where Kohler "advised the individual was." Upon arrival, Elbertson saw defendant, who he knew from "prior contacts in the community," and saw that defendant was there and "match[ed] the description given by Detective Kohler." The streetlights were on in the area and he had a clear and unobstructed view of defendant. Officer Elbertson then proceeded back to the police station to "retrieve" a picture of defendant for identification purposes, and returned to the briefing location about forty-five minutes later to meet Kohler. Elbertson advised Detective Kohler that he "may or may not recognize the person" in the photograph. Kohler "immediately" stated that the person in the photograph was the same person who sold him marijuana earlier that evening. Both officers signed and dated the photograph.
Defendant first contends that he was denied his Sixth Amendment right of confrontation by being unable to call defendant's mother as a defense witness to respond to what he claimed to be "surprise" evidence (and therefore no purposeful or intentional violation of the sequestration order or discovery rule)*fn1 when Kohler testified that the seller was clean-shaven, whereas defendant had a beard and mustache at the time of the offense four months before the arrest. Hence, counsel insisted that he previously "had no intention of calling her" until Kohler testified as he did and that, particularly in light of the photo, the testimony in this respect was unanticipated. Defense counsel said she "had no idea that Detective Kohler was going to say whoever sold him drugs was a clean shaven man." She further stated that there was "nothing in [Detective Kohler's] report that speaks to facial hair or lack of facial hair."
The trial judge concluded that because defendant received a copy of a photo and the police report in discovery, the mother, who was not listed on defendant's witness list and who had sat in the courtroom during a part of the trial, could not testify in light of the sequestration order. The State argues that "defendant cannot now argue that the court erred in disallowing him to call his mother to testify regarding his appearance when he made his appearance an issue in the first place."
Identification became a principal issue, and perhaps presentation of the photo in discovery should have triggered the thought about the need for testimony concerning facial hair, particularly because defendant decided not to testify after the ruling as to the admissibility of his prior conviction. However, the photo was provided in discovery as that shown to Kohler by Elbertson, not as a photo taken of defendant at the time of offense. Particularly because defendant was described by Kohler as having different facial features in the photo than described at the time of offense, and Kohler never described defendant as having or not having a beard or mustache in any pretrial description or report, and because the testimony about the absence of facial hair can reasonably be deemed to be unexpected, we find the trial judge's ruling to constitute a mistaken exercise of discretion. Accordingly, we reverse the conviction because defendant was deprived of a fair opportunity under the circumstance to present a defense.
We find no need to address any other issue, particularly because defendant is now aware of the trial court's evidentiary rulings. However, the trial judge should be guided by State v. Hamilton, 193 N.J. 255 (2008), as to the use of his prior conviction should he elect to testify. Finally, should defendant be convicted again, the sentencing is now governed by State v. Thomas, 188 N.J. 137 (2006), and State v. Pierce, 188 N.J. 155 (2006).
The judgment of conviction is reversed, and the matter is remanded for a new trial.