June 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THEODORE BLACKSHEAR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0909.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2008
Before Judges Yannotti and LeWinn.
Defendant Theodore Blackshear was charged under Passaic County Indictment No. 05-06-0909 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (counts four and five); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count six); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count seven). Tried to a jury, defendant was found guilty on counts one, four, five, six, and seven, and not guilty on counts two and three. Defendant was sentenced to an aggregate four-year term of incarceration. Defendant challenges his conviction. For the reasons that follow, we affirm.
We briefly summarize the evidence presented at trial. On February 23, 2005, at about 9:55 p.m., Detectives Thomas Adamo and Michael Nakashin of the Passaic County Sheriff's Department (PCSD) were on routine patrol in the area of Market and Clark Streets in Paterson. Adamo and Nakashin were driving in an unmarked police vehicle. They were dressed in plain clothes. Adamo said that he made a left-hand turn off Market to Clark Street. In the middle of the block, he observed two individuals standing outside a store having a conversation. Adamo said that it was dark but the individuals he observed were illuminated by a street light.
Adamo stated that the observed the two men through the front window of the police vehicle. His view was unobstructed. Adamo indicated that, as he continued to drive, he observed one of the men hand the other man an unknown amount of paper currency. Adamo stated that, when he saw this occur, he was probably around twenty-five feet from the men. No one was walking in the area and no cars blocked his view. Adamo said that one of the men accepted the currency and placed the money in his left pants pocket. Adamo identified defendant as the person who accepted the currency.
Adamo testified that defendant then reached into his left jacket pocket and removed an object. Adamo said that he was driving at a slow rate of speed, which he estimated to be about ten or fifteen miles per hour. He stated that he was about five feet away when he saw defendant reach into his jacket pocket and pulled out an object. The other individual looked up and was facing in the direction of the police vehicle. He said something to defendant. Defendant dropped the object to the ground and, according to Adamo, the two men "began to part ways."
Adamo and Nakashin exited their vehicle. Adamo told Nakashin to watch defendant. Adamo picked up the object that defendant dropped. He opened it and found fifteen green, plastic baggies of suspected crack cocaine. Adamo informed Nakashin of what he found and Nakashin went to place defendant under arrest but defendant ran north on Clark Street towards Market Street. Nakashin ran after defendant. Adamo told the other man that he was under arrest and not to leave. Adamo then left to follow Nakashin in his pursuit of defendant.
Nakashin tackled defendant near Market Street. Nakashin and defendant fell to the ground. Nakashin did not have control of defendant. According to Adamo, defendant punched and kicked him. Adamo punched defendant in the face in an effort to stop defendant from resisting the arrest. Adamo backed away and then sprayed defendant with pepper spray.
At that point, the officers were able to grab defendant's arms and place him in handcuffs. Adamo and Nakashin walked defendant back to the police vehicle and placed him in the rear of the car. Another officer had responded to the scene, but the other man involved in the drug transaction had already left the scene and was never found.
Adamo said that the suspected narcotics were field tested and the tests were positive for cocaine. Defendant was searched and found to be in possession of money. Adamo could not recall how much money defendant possessed. He noted that he did not indicate the amount in his report. He stated,
In actuality, it should be listed in my report. It wasn't seized because it -- it didn't exceed the -- the amount. It was -- it was only a small amount of money. I don't remember exactly how much, but most of the time we only confiscate money when it's over $50 because of the fees involved in the confiscation process.
Adamo also testified that defendant was taken to the hospital because he had complained about pain in the side of his face. Defendant was released that evening. Adamo said that the place where he first observed defendant was within 1,000 feet of the Dale Avenue School. Adamo stated that, to his knowledge, the school was a functioning school where children attend classes.
On cross-examination, Adamo reiterated that, when defendant was apprehended, he had money on his person. The following colloquy between Adamo and defense counsel ensued:
Q: But your report doesn't say anything about any money. Is that right?
A: That's incorrect.
Q: Show me then in your report where it mentions that my client had any money on his person[.]
A: [Defendant] accepted the currency and placed it into his left pants pocket.
Q: That's right. After you arrested him, how much money did he have?
A: I don't recall how much money it was.
Q: But you're telling us today that he did have the money you say he accepted on his person when you arrested him?
A: That's correct.
Q: But your report fails to mention how much money he had. Is that correct?
A: Yes. That's correct. . . . .
Q: Would you consider the amount of money that he had on him to be an important detail that should have been in your report?
A: Yes, I do.
Q: That money that you say he accepted and put into his left pocket, that money was evidence of a crime. Is that correct?
A: The money alone, sir?
Q: Yes. . . . .
Q: The money all by itself was evidence that [defendant] committed the offense of selling drugs. Is that correct?
A: The money alone, no.
A: I would say no.
Q: The money -- the money's not evidence that he sold drugs to the person who got away?
A: The money by itself, --
A: -- as you described it? I guess it would describe his intent, yes. But the money alone wouldn't describe -
Q: The amount of money he had is not important?
A: No. I did not say that, no.
Q: The amount of money he had--the money in his left pocket is not evidence in this case?
A: No. The money is evidence.
Q: Where is it?
A: It was in [defendant's] possession.
Q: Where is it now?
A: You would have to ask [defendant].
Q: Why would I have to ask [defendant], you arrested him?
A: The money wasn't confiscated.
Q: I see. Does your report say that you didn't confiscate the money he had in his pocket? Does your report say you did not confiscate it?
A: If it were confiscated, there would be a form filled out.
Q: Yes. There's no form, correct?
A: Which is why it wasn't confiscated.
Q: There's nothing in your report to indicate that you did not confiscate the money. Is that correct?
A: That's correct.
Nakashin testified that on February 23, 2005, he was on patrol with Adamo. Nakashin was in plain clothes. At around 9:55 p.m., he and Adamo were in an unmarked vehicle in the area of Clark and Market Streets. Nakashin said that, after Adamo observed "whatever he had observed," they exited their vehicle. Adamo said that one man had dropped something and Adamo asked Nakashin to watch defendant. Adamo picked up the object that had been dropped and said it was "crack." He instructed Nakashin to arrest defendant but, when he attempted to do so, defendant batted Nakashin's arm away and took off running on Clark Street across Market Street.
Nakashin gave chase on foot. He grabbed defendant on the opposite side of Market Street, tackled him, and rolled over him into a store front. Nakashin said that he was hurt. He got up and observed Adamo, who was having a physical confrontation with defendant. Defendant was kicking and punching Adamo. He saw defendant strike Adamo. Adamo stepped back and sprayed defendant, at which point he started "complying." Nakashin helped Adamo handcuff defendant.
On cross-examination, Nakashin conceded that, although he had testified on direct that he repeatedly told defendant he was under arrest, that fact was not mentioned in the police report. Nakashin conceded that the report also did not indicate that Nakashin tried to tackle defendant, rolled off of him, and struck the store front. Nakashin additionally admitted that the report did not state that he was hurt in the incident or suffered any pain. Nakashin stated that, although he and Adamo wrote the report together, the report had been written from Adamo's "point of view."
Nakashin further stated that, although he observed two males on the side of the street, he did not see any transaction. Nakashin stated that he did not see defendant accept any money from the unidentified man. He said that he did not observe defendant put any money in his left pocket. Nakashin additionally said that he never saw defendant in possession of any drugs.
On re-direct, Nakashin said that he did not search defendant but was present when he was searched. Nakashin testified that defendant was in possession of money. He could not recall how much money was found but he was "certain there was money." Nakashin indicated that the amount of money was not stated in the report, although he conceded that the amount should have been mentioned. Nakashin said that the money was returned to defendant because "it wasn't enough to seize." He stated that he was present when Adamo handed the money back to defendant.
On re-cross-examination, the following colloquy ensued between Nakashin and defendant's attorney:
Q: Let me get this straight, you were present when Adamo . . . gave the money back to my client? You were there?
A: Yes. . . . .
Q: You saw him take money out of my client's pocket?
Q: You saw him count the money?
Q: You saw him give the money back to my client?
A: Yes, I did.
Q: But you also don't remember how much money he had. Is that right?
A: Not offhand.
Q: Even though you were right there. Is that right?
Q: Yes. I didn't count the money.
Q: Did you ask to count it?
Q: Did you pick it up?
Q: But you saw the money?
A: Yes, I did.
Nakashin added that, if the amount of money found in the search had exceeded $50, it would have been seized as drug proceeds.
Lieutenant Michael Tucker of the PCSD testified that in February 2005, the department had a policy regarding the confiscation of money from criminal defendants. Tucker stated that under the policy, if someone is apprehended for suspected drug sales, the officer will not seize the money found on the person suspected of the offense unless the amount exceeds $50.
Defendant did not testify but called Officer Benjamin Olivo, who testified regarding the form that the PCSD uses when inmates are booked into the county jail. Olivo completed the form for defendant when he was brought to the county jail. The form states the clothes the inmate was wearing and the personal items he came in with. There is a place on the form that states, "Property Information," which refers to any cash or other property that the inmate came in with. Olivo said that this part of defendant's form was blank because defendant did not "have any money when he came into the jail."
At the charge conference on March 29, 2006, defense counsel asked for an instruction on prior inconsistent statements. The assistant prosecutor stated that, "[i]f the inconsistency is omission, then the State wouldn't object." The judge stated that there had to be an inconsistent statement but suggested that an omission would not suffice. The issue was not pursued during the further discussion of the jury charge on March 30, 2006.
In his summation, defense counsel addressed the testimony given by Detectives Adamo and Nakashin regarding the money they said defendant had in his possession when he was arrested. Counsel also discussed the PCSD's policy not to confiscate money from persons suspected of illegal drug transactions if the amount is less than $50. Counsel noted that both Adamo and Nakashin agreed that the amount of the money found on defendant was not mentioned in the report they prepared regarding the arrest. Counsel stated:
They expect you to believe what they're saying happened a year ago when it's not even in their report. It's not even in their report that was written the day after this happened, that he had money on his person when they arrested him.
And this policy. Does it exist? Does it not exist? I don't know. They say it exists. But rather than just saying [defendant] didn't have any money on him. We thought he put money into his left pocket, when we arrested him there was no money. Rather than just saying that, they will call another officer in to say that there's a policy in place where they give the money back. It's not in writing. There's no proof that any policy exists. And if it does exist, they just made this policy up? The officers weren't trained of any such policy. They just make this policy up as they go? Whether it's true or whether it's not true, there's no proof here. There is no proof that he had the money.
Now the [p]rosecutor may suggest to you, oh, well, he had money, but the reasons he didn't have money when he got to the jail was because he went to the hospital. He went somewhere else before he went to the jail and he may have . . . thrown the money away that he had on him. If he's arrested with money, he knows that they know he has money and he knows that they're going [to] document that he had money. Why on earth then if they give him his money back . . . would he then take perfectly good money and throw it away, get rid of money that [they have] already documented?
All you have on this case, ladies and gentlemen, is the word of the officers. You have to judge their credibility. You have to determine whether [to believe] what they told you . . . That's your job. . . . You can reject what they told you. Some of it you can reject or you can reject all of it.
In this case we have the testimony of two people who are telling you that [defendant] had money. Neither one of them documented it and they're telling you why they don't have the money, without any documentation.
The jury found defendant guilty of possession of CDS. He was found not guilty of possession of CDS with intent to distribute and not guilty of possession of CDS with intent to distribute within 1,000 feet of school property. Defendant was also found guilty of three counts of resisting arrest, as well as aggravated assault.
Defendant appeals from his conviction and raises the following argument for our consideration:
THE COURT'S FAILURE TO INSTRUCT THE JURY THAT IT COULD CONSIDER OFFICER ADAMO'S FAILURE TO INCLUDE IN HIS POLICE REPORT THAT MONEY WAS CONFISCATED FROM THE DEFENDANT AT THE TIME OF HIS ARREST AS SUBSTANTIVE EVIDENCE, IN THE CONTEXT OF A PRIOR INCONSISTENT STATEMENT, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL, U.S. CONST. AMEND XIV, N.J. CONST. (1947), ART. I., ¶¶ 1, 9, 10.
We disagree with defendant's argument and therefore affirm his conviction.
"When a witness's prior statement 'fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent' to be used for impeachment purposes." State v. Silva, 131 N.J. 438, 445 (1993) (citing 1 McCormick on Evidence §34 at 115 (Strong ed., 4th ed. 1992)). A prior inconsistent statement also may be used as substantive evidence, provided that the witness is available for cross examination. State v. Gross, 121 N.J. 1, 8 (1990).
These principles are reflected in the model jury instructions applicable to prior inconsistent statements. The model charge states in pertinent part:
Evidence, including a witness' statement or testimony prior to 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. . . . .
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 is 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 a trial that "The car was red." You may also consider the earlier statement that "The car was blue" as proof of the fact or [as] evidence that the car was blue.
[Model Jury Charge (Criminal)], "Prior Contradictory Statements of Witnesses" (2008).
We agree that the trial court erred by failing to provide the jury with an instruction on the use of prior inconsistent statements. The instruction was warranted because both Adamo and Nakashin had testified that defendant was in possession of an amount of money when he was taken into custody, but the report prepared by these officers did not state the amount of money that defendant had in his possession. Both officers conceded that the amount of money found on defendant's person should have been mentioned in their report. The omission constitutes a prior inconsistent statement. We are convinced, however, that the judge's failure to provide the jury with the model jury instruction on prior inconsistent statements did not deprive defendant of a fair trial.
Portions of a jury charge "alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). Here, the trial judge provided the jury with the general credibility charge. Thus, the judge specifically instructed the jury that, in assessing the credibility of a witness, the jury could consider whether the witness made an inconsistent or contradictory statement. The judge further instructed the jury that, if it believed that any witness knowingly testified falsely to any material facts in the case with intent to deceive you, you may give such weight to his or her testimony as you may deem . . . it is entitled. You may believe some of it or you may, in your discretion, disregard all of it.
Clearly, the jury was sufficiently instructed upon the use of prior inconsistent statements in assessing the credibility of the witnesses.
The jury was not instructed that Adamo's and Nakashin's prior inconsistent statements could be used as substantive evidence. The judge's failure to provide that instruction to the jury was, however, harmless error. The officers did not indicate in their report the amount of money that defendant possessed when he was arrested. The statements omitted from the police report potentially had substantive exculpatory value with respect to the charges that defendant possessed CDS with intent to distribute, but defendant was acquitted of those charges. Furthermore, the omitted statements would not have had any substantive exculpatory bearing upon whether defendant possessed CDS, resisted arrest, or assaulted Adamo. The possession of money was not a factor in any of those offenses.
Defendant argues that, had the jury been provided with the model jury charge on the use of prior inconsistent statements, he may have been acquitted on all charges. We disagree. In our view, the jury was adequately charged with regard to the use of prior inconsistent statements in the assessment of the credibility of the witnesses. We are not convinced that, had the jury been told that it could consider the omissions in the police report either for impeachment purposes or as substantive evidence, that it was likely the jury would have reached a different result on the counts upon which defendant was convicted.
Our decision in State v. Hammond, 338 N.J. Super. 330 (App. Div.), certif. denied, 169 N.J. 609 (2001), supports this conclusion. In that case, defendant was found guilty of murder, possession of a weapon for an unlawful purpose, armed robbery, and aggravated assault. Id. at 332. The State presented evidence in support of its theory that defendant shot and killed Paul Robinson in retaliation for an assault upon him by Robinson and others. Id. at 332-33.
At trial, Skylyn Hagins testified that he saw defendant shoot the victim. Id. at 335. Hagins initially told the police that he had not been present at the time of the shooting and did not know anything about it. Ibid. Gregory Ingram also testified as an eyewitness to the shooting. Ibid. However, previously Ingram told the police that he was home and in bed on the night in question. Id. at 335-36.
In Hammond, the trial judge provided the jury with a general credibility charge but did not instruct the jury on the use of prior inconsistent statements. Id. at 342-43. We held that the absence of the instruction did not deny defendant his right to a fair trial. Id. at 343-44. We noted that Hagins and Ingram initially told the police that they knew nothing of the shooting "rather than an alternative version of the crime scenario." Id. at 343. Thus, "the import of the out-of-court prior inconsistent statements went solely to the issue of credibility and they had no substantive exculpatory value of their own[.]" Ibid. We stated that "the jury, as instructed on credibility by the court, and as informed by its common sense and relevant life experience, was fully qualified to determine the credibility or lack of credibility of both eyewitness versions." Ibid.
That same conclusion applies here. While Adamo's and Nakashin's prior inconsistent statements may have had substantive exculpatory value as to the CDS distribution charges, that was not the case with regard to the charges upon which defendant was convicted. As to those charges, the inconsistencies between Adamo's and Nakashin's report and their trial testimony went solely to the credibility of those witnesses. We are convinced that the general credibility charge that the trial judge provided was sufficient to guide the jury in its consideration of that evidence and the trial judge's failure to instruct the jury on the use of prior inconsistent statements did not deny defendant of his right to a fair trial.
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