June 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRELL HARPER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-06-0841.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Lintner and Parrillo.
Tried by a jury, defendant, Darrell Harper, was convicted of third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and -5b(3) (Count Three), and third-degree distribution within 1000 feet of a school, N.J.S.A. 2C:35-5a and -7 (Count Five). He was acquitted of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (Count One), third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (Count Two), and third-degree possession of heroin with intent to distribute CDS within 1000 feet of a school, N.J.S.A. 2C:35-5a and -7 (Count Four).
The State's motion for a mandatory extended term, N.J.S.A. 2C:43-6f, was granted. The judge merged the Count Three and Count Five convictions, and imposed a six-year term with three years of parole ineligibility. Defendant appeals and raises the following points:
A REMAND IS NECESSARY FOR A HEARING ON WHETHER, UNKNOWN TO DEFENSE COUNSEL, THE STATE PROMISED LENIENCY IN EXCHANGE FOR THE BUYER'S TESTIMONY.
IT [IS] REVERSIBLE ERROR TO ALLOW THE STATE TO ELICIT EXPERT TESTIMONY FROM A NON-EXPERT ABOUT THE HABITS OF DRUG DEALERS, THE "GOING RATE" FOR DRUGS, AND BY PRESENTING A HYPOTHETICAL QUESTION REGARDING MR. STEARN BEING A "WELL-KNOWN BUYER" TO THE DEFENDANT. (NOT RAISED BELOW.)
BEING FOUND NOT GUILTY OF POSSESSION, BUT GUILTY OF DISTRIBUTION IS TOO INCONSISTENT TO SUSTAIN THE VERDICT. (NOT RAISED BELOW.)
UNDER THE CIRCUMSTANCES, IMPOSING SIX YEARS IN PRISON IS EXCESSIVE FOR ALLEGEDLY SELLING $6 OF DRUGS WEIGHING 0.36 GRAMS. (NOT RAISED BELOW.)
We reject defendant's contentions and affirm.
On May 8, 2003, three New Brunswick police officers, Detective Sam Hillyer, Detective Victor DeFilippo, and Officer Christopher Plowucha, observed a suspected drug transaction between defendant and Richard Stearn in front of 130 Redmond Street. At the time, they were on plainclothes patrol in an unmarked police van with Hillyer driving, DeFilippo in the front passenger seat, and Plowucha in the back seat. After observing the transaction, the officers moved in and placed both defendant and Stearn under arrest.
Stearn was indicted along with defendant and charged with one count of possession. Defendant's case was severed from Stearn's for trial. After defendant was convicted, the State dismissed the possession charge against Stearn.
Stearn, a heroin addict since 1999, appeared without his attorney under subpoena for the State. According to Stearn, defendant approached him and asked him if he wanted to purchase his last bag of heroin. Stearn placed the time of the transaction at between ten and eleven a.m. Stearn only had six or seven dollars on him, but told defendant that he would be needing more later and would get the remaining money for the bag to defendant later that day. Defendant agreed to sell Stearn a small bag of heroin for six dollars and Stearn could give him the remaining money later that day because he needed to "re-up"*fn1 anyway and it was his last bag. Stearn testified that the exchange of money for drugs occurred near a bodega in view of the police, who were turning the corner approximately 200 feet away. After he exchanged money for the drugs, Stearn stated that he went into the nearby bodega, then walked out and was arrested by the police.
Stearn also recounted his criminal record for possession of narcotics, for which he had been sentenced to probation after failing to complete pretrial intervention (PTI). At the time of the transaction, Stearn had been using approximately five to six bags of heroin a day, and he paid about fifteen dollars per bag. On cross-examination, Stearn admitted that he had been arrested and indicted for possession of heroin based on that transaction, and that he was represented by counsel and awaiting trial on those charges. However, he had yet to be given a court date even though it had been nearly two years since his arrest. His attorney was not present with him in court on the day of his testimony and he had not been given immunity by the prosecutor in exchange for his testimony. Although vigorously questioned about the circumstances of his attendance at trial, Stearn maintained that he was there solely because he had been subpoenaed, and that he was telling the truth for its own sake and not in exchange for a deal.
Hillyer, Plowucha, and DeFilippo each saw defendant hand Stearn the packet of drugs in exchange for money. Hillyer knew Stearn from prior arrests. Hillyer testified that, when they approached the suspects, Stearn froze in response to their command, while defendant put the cash in his pocket and turned to walk away from the scene. The police set the time of the transaction at three p.m. When arrested, defendant told the police that he walked there. Knowing that defendant occasionally drove a silver Mitsubishi, the officers located the car in the vicinity. Defendant's sister was inside the car. They searched the vehicle but found no drugs. The only drug recovered was the heroin defendant handed to Stearn.
The State called Detectives Dominick Zano and Michael Kosko of the New Brunswick Police Department's Identification Bureau. Zano and Kosko testified to their involvement in receiving the drug evidence and delivering it to the State Police Crime Lab for testing.
Defendant chose not to testify on his own behalf. He called his sister, who testified that she was waiting for her brother while he went to a store. She described the police search of the Mitsubishi, which was owned by the mother of defendant's children.
At sentencing, the defense argued in part that the verdict should be set aside because for Stearn to say that he did not have an expectation of leniency when he testified, considering that the charges against him were later dismissed, was "intellectually dishonest," and that such a tactic should not have been used by the prosecutor. The prosecutor stated that the reason he dismissed the charges against Stearn was because he was moved by Stearn's testimony. He represented to the judge that there was no prior deal in place between himself and Stearn to dismiss the charges.
Defendant first contends that the State withheld exculpatory evidence of a deal to dismiss the possession charge against Stearn in return for his testimony in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). He argues that a remand is in order to conduct a plenary hearing to determine whether the State promised Stearn leniency in return for testifying.
In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed. 2d at 218, the United States Supreme Court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." "[T]o establish a Brady violation, the defendant must show: (1) the prosecution suppressed evidence; (2) the evidence [was] favorable to the defense; and (3) the evidence [was] material. State v. Martini, 160 N.J. 248, 268 (1999).
"[E]vidence is 'material' if there is a 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' A 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome.' Id. at 269 (citations omitted) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed. 2d 481, 494 (1995)).
Where the prosecutor has knowledge of exculpatory evidence against a defendant, "'[d]ue process requires that the State disclose information it possesses which is material to the defense, even where it concerns only the credibility of a State's witness.'" State v. Rodriguez, 262 N.J. Super. 564, 571 (App. Div. 1993) (quoting State v. Spano, 69 N.J. 231, 235 (1976)). "It is fundamental that [the] defendant has a right to explore, with a prosecution witness, evidence that the State has a 'hold' of some kind over the witness, the mere existence of which possesses the potential of prompting him to color his testimony in favor of the prosecution." State v. Holmes, 290 N.J. Super. 302, 312 (App. Div. 1996). Even if there is no express agreement between the government and the witness "that the witness will benefit from testifying favorably for the State, or, alternatively, that the witness will suffer because of failing to do so," a defendant is still entitled to cross-examine the witness with regard to this possibility. Id. at 313. "All that matters is that the witness subjectively regards himself as vulnerable to government pressure." Ibid.
Defendant asserts that the adjournment of Stearn's trial, his appearance under State subpoena without his attorney, his self-incriminating testimony, and the subsequent dismissal are coincidences that bespeak that a deal was in place, thus warranting a plenary hearing. However, at trial, the defense vigorously cross-examined Stearn regarding its contention that he was testifying in return for leniency:
[Defense Counsel]: Okay. You were named on this indictment along with my client, correct?
[Defense Counsel]: You were indicted for possession, correct?
[Defense Counsel]: And what's happening with your case right now?
[Stearn]: I don't know.
[Defense Counsel]: You don't know?
[Defense Counsel]: Do you have a lawyer?
[Stearn]: Yes, I do.
[Defense Counsel]: Okay. And so you're here and you're giving testimony and you don't know what's going on with your case, correct?
[Stearn]: I haven't gone to court yet.
[Defense Counsel]: You haven't been up in this building going to court?
[Stearn]: Yes. They keep adjourning it.
[Defense Counsel]: And do you know when your next court date is?
[Stearn]: No, I don't.
[Defense Counsel]: Okay. And you have no idea -- how long has this been going on?
[Stearn]: For two years.
[Defense Counsel]: For two years?
[Defense Counsel]: And you don't know when your next court date is?
[Defense Counsel]: Okay. And you have a lawyer?
[Stearn]: Yes, I do.
[Defense Counsel]: And you're here testifying?
[Defense Counsel]: And who asked you to come here and testify?
[Stearn]: I was subpoenaed.
[Defense Counsel]: You were subpoenaed.
[Defense Counsel]: Did you talk to your lawyer about coming here and testifying?
[Defense Counsel]: Okay. And do you see your lawyer here?
[Defense Counsel]: Okay. And you're testifying because it's your hope to get something for this testimony, aren't you?
[Defense Counsel]: You're here out of the goodness of your heart, correct?
[Stearn]: I'm here subpoenaed to tell the truth.
[Defense Counsel]: Okay. And you don't know that you're going to reap any benefit from this testimony?
[Stearn]: No, I don't.
[Defense Counsel]: You have no idea?
[Defense Counsel]: You never discussed it with your lawyer?
[Defense Counsel]: You never discussed it with the prosecutor?
[Defense Counsel]: You just came here on a subpoena uncounseled and you're testifying for nothing?
[Stearn]: Isn't that what you're supposed to do is tell the truth?
[Defense Counsel]: That's not the question. Please answer the question. The question is you're testifying here for nothing?
[Stearn]: For nothing? Yes.
[Defense Counsel]: Okay. You don't expect a dismissal?
[Defense Counsel]: You don't expect probation?
Then, during summation, defense counsel argued:
Now, I asked him what are you here for, out of the goodness of your heart? He's here out of the goodness of his heart? No. He said I got a subpoena. Well, that ought to cover it pretty well. I got a subpoena.
This man is represented by counsel and he told you that his case is put off until after this trial. Now, why do you think that is? You really think that the only reason he's here is because he got a subpoena? That he's here without counsel?
Because he got a subpoena? That he has a pending matter? But it doesn't matter. I don't know when my court date is. I just know it's after this case because this case was put off. I submit to you that this guy's getting a deal. He's getting a deal for his testimony pending the outcome of this trial. That's what I say Mr. Stearn was doing here. Something else to take away the pain. Something else to take the sting out of his charge. (Emphasis added).
Certainly, if a deal was actually in place, it would be a material fact. The record clearly established that Stearn: (1) was a co-defendant in this matter; (2) he had a prior conviction for possession for which he failed out of PTI; (3) admitted that he mainlined heroin on a daily basis; (4) his court date was still pending at the time he testified; and (5) he was testifying as a State witness. Thus, notwithstanding Stearn's and the prosecutor's representations to the contrary, the jury could well have determined that Stearn was biased against defendant, in the hopes that he might gain a measure of leniency for himself. A reasonable juror could have concluded that Stearn had some ulterior motive for testifying and not taking his constitutional protection against self-incrimination.
A defendant's constitutional right to explore potential bias is broader in our State than in the federal courts. Holmes, supra, 290 N.J. Super. at 313. The test of whether questions as to a witness's credibility are proper "is not necessarily whether there was an arrangement to grant the witness concessions." Ibid. (quoting State v. Mazur, 158 N.J. Super. 89, 94 (App. Div.), certif. denied, 78 N.J. 399 (1978)). Rather "'[i]t is . . . relevant and significant for a defendant to demonstrate the state of mind of the witness based on his subjective reactions to the favorable treatment he may have received or may hope to receive in connection with his own criminal involvement." Ibid. (quoting Mazur, supra, 158 N.J. Super. at 94). Stated simply, defendant made an ample showing that Stearn may have been seeking a benefit from the State or in hopeful receipt of leniency in return for testifying as he did. The jury, however, chose not to accept defendant's argument. Under the circumstances, we see no reason for a rerun to further explore defendant's supposition regarding the existence of a deal, which was specifically denied by both Stearn and the prosecutor.
Next, defendant raises, for the first time on appeal, trial error, resulting from questions asked concerning the going rate for purchasing drugs. On cross-examination, the defense asked Hillyer if he knew what the going rate is for a packet of drugs. Hillyer replied that "[i]t varies[, i]t's anywhere from $11 to $20 depending on who you are, how much you're buying." On redirect, the prosecutor asked Hillyer whether "well-known buyers ever pay part or all of the money that they [pay] later after getting the drugs." Hillyer answered affirmatively. Hillyer had previously testified on direct that he had worked nearly eighteen years in the anti-crime units of police departments, and for eleven years in New Brunswick, and that he had participated in over 300 surveillances of drug transactions.
Asserting plain error, defendant contends that those questions represent an impermissible eliciting of expert opinion from Hillyer concerning the going rate for drugs and the propensity for drug buyers and sellers to obtain drugs on credit. Similar to its civil counterpart judicial estoppel, the doctrine of invited error "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). It is applied if the trial court relies on a defendant who is able to convince or mislead the court into taking a position that it now urges is error on appeal. Ibid.
The "opening the door" was explained in depth in State v. James, 144 N.J. 538, 554 (1996).
The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection. The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence. That doctrine operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context. [Ibid. (citation omitted).]
The doctrine does not permit admission of evidence where the probative value "is substantially outweighed by the risk of . . . undue prejudice." Ibid. (quotation omitted). It was defendant who first elicited an opinion from Hillyer regarding the going price for drugs. The prosecutor's question on redirect was generated based upon defense counsel's cross. Beyond that, Hillyer's vast experience in the anti-crime unit, which was "primarily the Narcotics Unit," was sufficient to qualify to give opinion evidence as an expert in drug transactions. We are satisfied that the challenged testimony did not amount to error under the circumstances, much less plain error. R. 2:10-2.
Next, defendant asserts that it was plain error for the State to elicit from Hillyer that Stearn was a well-known drug user. Defendant argues that the evidence was inadmissible under N.J.R.E. 404(b). Hillyer testified that he knew Stearn as having been arrested previously for possession of drugs.
DeFilippo testified that Stearn "was basically a buyer, what [the police] call a junky, just out there everyday buying heroin, addicted."
Evidence of other crimes and wrongs, under N.J.R.E. 404(b), is admissible to establish opportunity and identity. The testimony by the police that they knew Stearn as a drug addict was not elicited to establish defendant's or Stearn's propensity to commit crime. Rather, it was elicited to explain why the police would pay particular attention to a hand-to-hand transaction between Stearn and others.
Defendant argues that the challenged testimony embraced impermissible evidence of other crimes because it led to a logical conclusion that he approached Stearn because he knew Stearn was an addict. Even were we to agree with defendant's contention, which we do not, the evidence would be harmless in view of Stearn's own testimony that he was known on the street as a junky and defendant approached him and asked whether he wanted to buy drugs.
Defendant next asserts that the jury's not guilty verdicts on the charges of possession and possession with intent to distribute are inconsistent with the verdict returned by the jury because one cannot be convicted of distribution without having possessed drugs. He maintains that, because a person cannot distribute without being in possession, the jury verdict is impermissibly inconsistent. Again, we disagree.
In State v. Grey, 147 N.J. 4, 9-11 (1996), the Court adopted the view expressed by the United States Supreme Court in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed. 2d 461 (1984), and Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that a criminal jury's inconsistent verdicts should be sustained when the evidence is sufficient to support the convictions obtained. This doctrine applies when it is impossible to determine the reason for the inconsistency. "[I]n such cases, [the reviewing court] should not speculate as to whether the verdicts resulted from jury lenity, compromise, or mistake not adversely affecting the defendant." Id. at 11. An inconsistent "verdict might indicate only an exercise of leniency or nullification." Id. at 9. Indeed, "[s]o long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt, such verdicts are normally permitted." Id. at 10.
One need not be found guilty of possession in order to be found guilty of distribution. State v. Davis, 68 N.J. 69, 82-84 (1975). Possession and distribution are two different crimes. Ibid. Here, the police officers testified to witnessing only the exchange between defendant and Stearn. Simply stated, the evidence was sufficient to sustain the convictions on the distribution charges, and we need not explore the possible reasons that the jury chose to acquit on the possession charges. Grey, supra, 147 N.J. at 11.
Finally, defendant contends that his six-year sentence was excessive. He concedes that he was eligible for a mandatory extended term. The judge determined defendant's sentence within the extended-term range based on aggravating and mitigating factors found. State v. Thomas, 188 N.J. 137, 154 (2006); State v. Young, 379 N.J. Super. 498, 509-10 (App. Div. 2005), cert. granted in part, remanded in part, 188 N.J. 349 (2006). Beyond that, we are satisfied that 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).